CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof: (a) The Company shall have executed this Agreement and delivered the same to the Investor. (b) The Company shall have executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the Closing. (c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes). (d) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached hereto. (e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto. (f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date. (g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date. (h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date. (i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as Exhibit E. (j) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F. (k) 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. (l) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (m) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 4 contracts
Samples: Second Amendment and Exchange Agreement (Cash Systems Inc), Second Amendment and Exchange Agreement (Cash Systems Inc), Second Amendment and Exchange Agreement (Cash Systems Inc)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have duly executed and delivered to the Investor (i) this Agreement, (ii) the Series B Notes (allocated in such principal amounts as the Investor shall request) being issued to the Investor at the Closing pursuant to this Agreement and delivered (iii) the same Amended and Restated Primary Notes (allocated in such principal amounts as the Investor shall request) being issued to the InvestorInvestor at the Closing pursuant to this Agreement.
(b) The Each of the Company and its Subsidiaries shall have duly executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued Security Documents to such Investor at the Closingwhich it is a party.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached hereto.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate, in the form attached hereto as Exhibit I, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as Exhibit E..
(jd) The Company shall have delivered to the Investor a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) days of the Closing Date.
(e) The Company shall have delivered to the Investor a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State of Delaware, which is the only jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) days of the Closing Date.
(f) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(g) The representations and warranties of the Company hereunder in Section 3(b) shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, executed by the Chief Executive Officer or Chief Financial 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 Investor in the form attached hereto as Exhibit F.K.
(kh) 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.
(i) The Share Exchange Agreement, shall have been duly executed and delivered by all parties thereto to the Investor shall provide that the Investors are expressed third party beneficiaries thereof and shall be reasonably acceptable to the Collateral Agent.
(j) The Company shall have duly executed and delivered the Settlement Exchange Agreement to PNG and the Investor.
(k) PNG shall have duly executed and delivered Exhibit A to the Settlement Exchange Agreement to the Investor.
(l) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities, including, without limitation, any approvals or notifications required by the Principal Market.
(m) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 4 contracts
Samples: Amendment and Exchange Agreement (Earth Biofuels Inc), Amendment and Exchange Agreement (Earth Biofuels Inc), Amendment and Exchange Agreement (PNG Ventures Inc)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed each of this Agreement, the Exchange Registration Rights Agreement and the Exchange Warrants and delivered the same to the such Investor.
(b) The Company Series D Certificate of Designations shall have executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the Closing.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached hereto.
(e) The Company shall have delivered to the Company’s transfer agent, been filed with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer State of Delaware, and a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as thereof certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of shall have been made available to such certificate) within ten (10) days of the Closing DateInvestor.
(ic) The Company Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have delivered to the Investor a certificate, executed been suspended by the Secretary SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Company Principal Market; and dated as the Series D Conversion Shares issuable upon conversion of the Closing Date, as Initial Series D Shares (without regard to (iany limitations on conversions) and the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as Exchange Warrant Shares issuable upon exercise of the Closing, in Exchange Warrants (without regard to any limitations on exercises) shall be listed (subject to official notice of issuance) upon the form attached hereto as Exhibit E.Principal Market.
(jd) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Such Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.such Buyer.
(ke) The Common Stock (I) Such Buyer shall be designated for quotation or listed on have received the Principal Market and (II) shall not have been suspendedopinion of Shack Xxxxxx Xxxx & Xxxxxxxx P.C., dated as of the Closing Date, in the form of EXHIBIT D-1, attached hereto, and an opinion of the General Counsel to the Company, in the form of EXHIBIT D-2, attached hereto.
(f) The Company shall have executed and delivered to the Investor the Certificates and Exchange Warrants (in such denominations as such Investor shall request) for the Initial Series D Shares and the Exchange Warrants being issued to the Investor at the Closing.
(g) The Board of Directors of the Company shall have adopted resolutions consistent with the transactions contemplated hereby and in a form reasonably acceptable to the Investor (the "RESOLUTIONS").
(h) The Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Exchange Shares, and the exercise of the Exchange Warrants, at least 17,954,503 shares of Common Stock.
(i) The Company shall have delivered to the Investor a letter from the Company that is acknowledged and agreed to by the SEC Company's transfer agent acknowledging that the Irrevocable Transfer Agent Instructions dated May 16, 2003 shall also apply to the Series D Conversion Shares and the Exchange Warrant Shares.
(j) The Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of the Company and each U.S. Subsidiary in such entity's state of incorporation or the Principal Market from trading on the Principal Market nor shall suspension organization issued by the SEC Secretary of State of such state of incorporation or the Principal Market have been threatened, organization as of a date within ten days of the Closing Date.
(k) The Company shall have delivered a good standing certificate to the Investor, either (A) certifying the Company's qualification to do business and the good standing of the Company in writing the State of Illinois as certified by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements Secretary of State of the Principal MarketState of Illinois as of a date within ten days of the Closing Date.
(l) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for delivered to the sale Investor a certified copy of the SecuritiesCertificate of Incorporation as certified by the Secretary of State of the State of Delaware as of a date within ten days of the Closing Date.
(m) The Company shall have delivered to the Investor a secretary's certificate, dated as of the Closing Date, certifying as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) the By-laws, each as in effect at the Closing.
(n) The Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws.
(o) The Company shall have delivered to the Investor a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
(p) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement hereby as the Investor or its their counsel may reasonably request.
(q) The Company (and its rights agent) shall have executed an amendment to its Amended and Restated Rights Agreement in the form of EXHIBIT E attached hereto.
Appears in 3 contracts
Samples: Amendment and Exchange Agreement (Midway Games Inc), Amendment and Exchange Agreement (Midway Games Inc), Amendment and Exchange Agreement (Midway Games Inc)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed this Agreement and delivered the same to the Investor.
(b) The Company shall have executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the Closing.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c4(d)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit C attached hereto.
(e) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached hereto.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-bring- down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as Exhibit E.
(j) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.
(k) 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.
(l) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(m) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 3 contracts
Samples: Amendment and Exchange Agreement (Cash Systems Inc), Amendment and Exchange Agreement (Cash Systems Inc), Amendment and Exchange Agreement (Cash Systems Inc)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have duly executed this Agreement and delivered the same to the Investor.
(b) The Company shall have executed and delivered caused the Transfer Agent to credit the Exchange Shares to the Investor or its designee's balance account through the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the ClosingDTC Fast Automated Transfer Program.
(c) Each The Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing (if applicable) of the Other Investors shall have (i) executed agreements identical to this Agreement (Company and each of its Subsidiaries in such corporation's jurisdiction of incorporation issued by the “Other Agreements”) (Secretary of State or other than (i) proportional changes (comparable authority of such jurisdiction of incorporation as of a date within 10 days of the “Proportionate Changes”) Closing Date, or, in the numbers reflecting the different dollar amount case of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c))California, (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes)as soon thereafter as is reasonably practicable.
(d) The Investor shall have received From the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of date hereof to the Closing Date, (i) trading in substantially the form Common Stock shall not have been suspended by the SEC or the Principal Market, and, (ii) at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited or threatened either (A) in writing by the SEC or the Principal Market or (B) except as described in Schedule 2(b)(v), by falling below the minimum listing maintenance requirements of Exhibit C attached heretothe Principal Market, or minimum prices shall not have been established on securities whose trades are reported by such service, or on the Principal Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Investor, makes it impracticable or inadvisable to consummate the transactions contemplated by this Agreement.
(e) The Company shall have delivered to the Company’s transfer agentInvestor a certificate, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered reasonably acceptable to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificateInvestor, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions as adopted by the Company's board of directors approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the BylawsBylaws of the Company, each as in effect as of at the Closing, in the form attached hereto as Exhibit E..
(jf) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak were made as of a specific date, which shall be true and correct as of such specified specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.
(k) The Common Stock (I) shall be designated for quotation or listed on reasonably acceptable to 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 MarketInvestor.
(lg) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale issuance of the SecuritiesExchange Shares.
(mh) There shall have been no Material Adverse Effect with respect to the Company since the date hereof.
(i) {Left Blank Intentionally.}
(j) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request. o Notwithstanding anything contained in this Agreement to the contrary, by checking this box (i) the obligations of the Investor to exchange the Investor Warrants with the Company, and the obligations of the Company to exchange the Exchange Shares with the Investor, shall be unconditional and all conditions to Closing shall be disregarded, and (ii) any condition to Closing contemplated by this Agreement (but prior to being disregarded by clause (i) above) that required delivery by the Company or the above-signed of any agreement, instrument, certificate or the like (as applicable) shall no longer be a condition and shall instead be an unconditional obligation of the Company or the Investor (as applicable) to deliver such agreement, instrument, certificate or the like (as applicable) to such other party on the Closing Date.
Appears in 2 contracts
Samples: Exchange Agreement (Tri Valley Corp), Exchange Agreement (Tri Valley Corp)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed and delivered to such Investor (i) this Agreement and delivered (ii) the same to the InvestorReplacement Notes (in such principal amounts as such Investor shall request).
(b) The Company shall have executed and (i) delivered or caused to be delivered to the Investor the Second Amended and Restated Notes Investor Redemption Amount, the Redemption Interest Release Amount and the Second Amended Share Exchange Interest Release Amount by wire transfer of immediately available funds pursuant to the wire instructions provided by the Investor and Restated Warrants being issued to (ii) executed and delivered the stock certificates (in such denominations as the Investor at shall request) for the ClosingInvestor Exchange Shares.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Investor shall have received the opinion opinions of ManattMilbank, Pxxxxx Tweed, Hadley & Pxxxxxxx, McCloy LLP, the Company’s 's outside counsel, and Zxx XxxxxxBrian O'Donogxxx, Esq., the Company’s internal general counselxhe Xxxxxxy's General Counsel, each dated as of the Closing Datexxxx xxxxxx, in xx substantially the form of Exhibit C Exhibits C-1 and C-2 attached hereto.
(d) The Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation, to the extent set forth in Section 3(a) of the Securities Purchase Agreement, as of a date within 10 days of the date hereof.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer Investor a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s 's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, State of New York as of a date within 10 days of the Closing Datedate hereof.
(hf) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) 10 days of the Closing Datedate hereof.
(ig) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b) of the Securities Purchase Agreement after giving effect to the amendments contemplated by this Agreement in a form reasonably satisfactory to the Investor.
(h) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Datedate hereof, as to (i) the resolutions approving authorizing the transactions contemplated hereby set froth herein as adopted by the Company's Board of Directors in a form reasonably acceptable to the InvestorInvestor (the "RESOLUTIONS"), (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of at the Closingdate hereof, in the form attached hereto as Exhibit E.D.
(i) The Company shall have delivered to the Investor a letter from the Company's transfer agent (x) certifying the number of shares of Common Stock outstanding as of a date within five days of the date hereof and (y) acknowledging that the Irrevocable Transfer Agent Instructions delivered to the Trustee on December 31, 2002 shall also apply to the Replacement Notes and the Redemption Warrants..
(j) 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 Initial 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 date hereof, either in writing by the SEC or the Principal Market; and the Exchange Shares, the Replacement Conversion Shares and the Initial Warrant Shares shall be listed upon the Principal Market .
(k) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.
(k) 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.E.
(l) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale issuance of the SecuritiesReplacement Notes.
(m) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 2 contracts
Samples: Redemption, Amendment and Exchange Agreement (Viewpoint Corp/Ny/), Redemption, Amendment and Exchange Agreement (Viewpoint Corp/Ny/)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed this Agreement and delivered the same to the Investor.
(b) The Company shall have executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated New Warrants being issued to such Investor at the Closing.
(c) Each of the Other Investors The Company shall have (i) executed agreements identical delivered to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of Investor such Investor’s Notes Investors Amendment Payment Amount and the number Note Redemption Price by wire transfer of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions immediately available funds pursuant to the closings contemplated wire instructions provided by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes)Investor.
(d) The Company shall have delivered to the Company's transfer agent, with a copy to the Investors, a letter stating that the Irrevocable Transfer Agent Instructions dated October 5, 2005 shall also apply to the Amended and Restated Shares.
(e) Such Investor shall have received the opinion of ManattXxxxxx, Pxxxxx Xxxxxx-Xxxxxxx, Colt & Pxxxxxxx, Mosle LLP, the Company’s 's outside U.S. counsel, and Zxx Xxxxxx, Esq.Xxxxx Xxxxxx Xxxxxxx, the Company’s internal general 's outside Australian counsel, each dated as of the Closing Date, similar in substantially the form of Exhibit C attached hereto.
(e) The Company shall have delivered all material respects to the Company’s transfer agent, with a copy opinions delivered pursuant to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached heretoSecurities Purchase Agreement.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, similar in all material respects to the form attached hereto as Exhibit E.certificate executed by the Secretary of the Company delivered pursuant to the Securities Purchase Agreement.
(jg) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be remain true and correct as of such specified specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default Default or Event of Default shall have occurred and be continuing as of on the Closing Datedate hereof either immediately before or after giving effect to this Agreement in accordance with its terms. The Investor shall have received a certificate, 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 Investor Investor, similar in all material respects to the form attached hereto as Exhibit F.certificate executed by the Chief Executive Officer of the Company delivered pursuant to the Securities Purchase Agreement.
(kh) The Common Stock ADRs (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.
(li) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the issue and sale of the Securities, including, without limitation, any approvals or notifications required by the Principal Market.
(m) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 2 contracts
Samples: Amendment Agreement (pSivida LTD), Amendment Agreement (pSivida LTD)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed this Agreement and delivered the same to the Investor.
(b) The Company shall have executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the Closing.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c4(d)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit C attached hereto.
(e) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached hereto.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as Exhibit E.
(j) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.
(k) 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.
(l) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(m) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 2 contracts
Samples: Amendment and Exchange Agreement (Cash Systems Inc), Amendment and Exchange Agreement (Cash Systems Inc)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed this Agreement and delivered the same to the Investor.
(b) The Company shall have executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the Closing.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount amounts of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)Notes), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated the new Notes and Warrants identical being issued to such Other Investors at the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes)Closing.
(d) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached hereto.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board of Directors in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each Investor as in effect as of the Closing, in the form attached hereto as Exhibit E.B.
(je) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.C.
(k) 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.
(lf) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(mg) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. 8.1 The obligations obligation of the each Investor hereunder are to purchase the Shares and the related Warrants at the Closing is subject to the satisfaction satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the each Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed (or caused to be executed) and delivered to Investor (i) each of the Transaction Documents by the Company and each of the other parties thereto (other than the Investor) and (ii) the Warrants (in such amounts as Investor shall request) being purchased by Investor at the Closing pursuant to this Agreement Agreement, and shall have irrevocably instructed the Transfer Agent to deliver the Shares (in such amounts as Investor shall request) as provided for herein.
(b) Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Investor.
(b) The Company shall have executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the ClosingCompany.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Such Investor shall have received the opinion of ManattXxxxxxx Xxxxxx, Pxxxxx & Pxxxxxxx, LLPP.A., the Company’s outside counselcounsel (the “Company Counsel”), and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C F attached hereto.
(ed) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer Investor a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(ge) The Company shall have delivered evidence of the action of its board of directors and shareholders approving (as applicable) the transactions contemplated by the Transaction Documents including, but not limited to, the election of the Investor’s designee to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification board of directors as a foreign corporation and good standing issued by required under the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing DateVoting Agreement.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as Exhibit E.
(jf) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date (except such representations and warranties that are qualified by materiality, which shall be true and correct in all respects) as though 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 respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F..
(kg) The Common Stock (Ii) shall be designated for quotation or listed on the Principal Market OTCBB and (IIii) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market OTCBB from trading on the Principal Market OTCBB nor shall suspension by the SEC or the Principal Market OTCBB have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market OTCBB or (B) by falling below the minimum listing maintenance requirements of the Principal MarketOTCBB.
(lh) The Company shall have obtained all governmental, regulatory or third party licenses, waivers, consents and approvals, if any, necessary for the sale of the SecuritiesShares and the Warrants.
(i) No proceeding shall have been commenced on any grounds to restrain, enjoin or hinder the consummation of the transactions contemplated by this Agreement and no law shall have been enacted or promulgated by any governmental authority that prohibits the consummation of the transactions contemplated by this Agreement.
(j) The Company shall have delivered to Investor, a summary of the capitalization of the Company, on a fully diluted basis, immediately preceding and following the closing of the Company’s aggregate fundraising (from all sources) related to the Transaction Documents.
(k) The Company shall have delivered to Investor the form of 8-K proposed to be filed in connection with the transactions contemplated by this Agreement.
(l) No event, circumstances or fact shall have occurred that has had or could reasonably be expected to have a material adverse effect on the business, assets, properties or condition (financial or otherwise) of the Company and any of its Subsidiaries.
(m) The Company shall have raised at least $2,000,000 in gross proceeds from the simultaneous private sale of Common Stock and Warrants (including amounts invested by Investor through the Escrow Agreement), in each case at the same price, and the Company shall have satisfied the other requirements of the Escrow Agreement.
(n) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed this Agreement and delivered the same to the Investor.
(b) The Company shall have executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the Closing.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount amounts of such Investor’s Other Investors’ Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)Other Investors’ Warrants), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated the new Notes and Warrants identical being issued to such Other Investors at the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes)Closing.
(d) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached hereto.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board of Directors in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each Investor as in effect as of the Closing, in the form attached hereto as Exhibit E.B.
(je) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.C.
(k) 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.
(lf) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(mg) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed each of this Agreement and delivered the same to the such Investor.
(b) The Company shall have executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the Closing.
(c) Each of the Other Investors Series C-1 Certificate of Designations and the Series C-2 Certificate of Designations shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached hereto.
(e) The Company shall have delivered to the Company’s transfer agent, been filed with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer State of Delaware, and a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as thereof certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of shall have been made available to such certificate) within ten (10) days of the Closing DateInvestor.
(ic) The Company Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have delivered to the Investor a certificate, executed been suspended by the Secretary SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Company Principal Market; and dated as the Exchange Conversion Shares issuable upon conversion of the Closing Date, as Exchange Shares (without regard to (iany limitations on conversions) and the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as Warrants Shares issuable upon exercise of the Closing, in Warrants (without regard to any limitations on exercises) shall be listed (subject to official notice of issuance) upon the form attached hereto as Exhibit E.Principal Market.
(jd) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Such Investor shall have received a certificate, 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 such Buyer.
(e) Such Buyer shall have received the Investor opinion of opinion of Akin Gump Strauss Hauer & Feld LLP, the Company's counsel, dated as of xxx Clxxxxg Date, in the form of EXHIBIT C, attached hereto hereto.
(f) The Company shall have executed and delivered to the Investor the certificates (in such denominations as Exhibit F.such Investor shall request) for the Series C-1 Shares and the Series C-2 Shares being issued to the Investor at the Closing.
(g) The Board of Directors of the Company shall have adopted resolutions consistent with the transactions contemplated hereby and in a form reasonably acceptable to the Investor (the "RESOLUTIONS").
(h) The Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Exchange Shares, at least 2,152,500 shares of Common Stock.
(i) The Company shall have delivered to the Investor a letter from the Company that is acknowledged and agreed to by the Company's transfer agent acknowledging that the Irrevocable Transfer Agent Instructions dated June 2, 2003 shall also apply to the Exchange Conversion Shares.
(j) The Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of the Company and each U.S. Subsidiary in such entity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization as of a date within ten days of the Closing Date.
(k) The Common Stock (I) Company shall be designated for quotation or listed on have delivered to the Principal Market and (II) shall not have been suspended, Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware as of a date within ten days 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.
(l) The Company shall have obtained all governmentaldelivered to the Investor a secretary's certificate, regulatory or third party consents and approvals, if any, necessary for the sale dated as of the SecuritiesClosing Date, certifying as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) the By-laws, each as in effect at the Closing.
(m) The Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws.
(n) The Company shall have delivered to the Investor a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
(o) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement hereby as the Investor or its their counsel may reasonably request.
Appears in 1 contract
Samples: Amendment and Exchange Agreement (Valence Technology Inc)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. 8.1 The obligations obligation of the each Investor hereunder are to purchase the Shares and the related Warrants at the Closing is subject to the satisfaction satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the each Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed (or caused to be executed) and delivered to Investor (i) each of the Transaction Documents by the Company and each of the other parties thereto (other than the Investor) and (ii) the Warrants (in such amounts as Investor shall request) being purchased by Investor at the Closing pursuant to this Agreement Agreement, and shall have irrevocably instructed the Transfer Agent to deliver the Shares (in such amounts as Investor shall request) as provided for herein.
(b) Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Investor.
(b) The Company shall have executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the ClosingCompany.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Such Investor shall have received the opinion of ManattCxxxxxx Xxxxxx, Pxxxxx & Pxxxxxxx, LLPP.A., the Company’s outside counselcounsel (the “Company Counsel”), and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C F attached hereto.
(ed) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer Investor a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(ge) The Company shall have delivered evidence of the action of its board of directors and shareholders approving (as applicable) the transactions contemplated by the Transaction Documents including, but not limited to, the election of the Investor’s designee to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification board of directors as a foreign corporation and good standing issued by required under the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing DateVoting Agreement.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as Exhibit E.
(jf) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date (except such representations and warranties that are qualified by materiality, which shall be true and correct in all respects) as though 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 respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F..
(kg) The Common Stock (Ii) shall be designated for quotation or listed on the Principal Market OTCBB and (IIii) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market OTCBB from trading on the Principal Market OTCBB nor shall suspension by the SEC or the Principal Market OTCBB have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market OTCBB or (B) by falling below the minimum listing maintenance requirements of the Principal MarketOTCBB.
(lh) The Company shall have obtained all governmental, regulatory or third party licenses, waivers, consents and approvals, if any, necessary for the sale of the SecuritiesShares and the Warrants.
(i) No proceeding shall have been commenced on any grounds to restrain, enjoin or hinder the consummation of the transactions contemplated by this Agreement and no law shall have been enacted or promulgated by any governmental authority that prohibits the consummation of the transactions contemplated by this Agreement.
(j) The Company shall have delivered to Investor, a summary of the capitalization of the Company, on a fully diluted basis, immediately preceding and following the closing of the Company’s aggregate fundraising (from all sources) related to the Transaction Documents.
(k) The Company shall have delivered to Investor the form of 8-K proposed to be filed in connection with the transactions contemplated by this Agreement.
(l) No event, circumstances or fact shall have occurred that has had or could reasonably be expected to have a material adverse effect on the business, assets, properties or condition (financial or otherwise) of the Company and any of its Subsidiaries.
(m) The Company shall have raised at least $2,000,000 in gross proceeds from the simultaneous private sale of Common Stock and Warrants (including amounts invested by Investor through the Escrow Agreement), in each case at the same price, and the Company shall have satisfied the other requirements of the Escrow Agreement.
(n) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
Samples: Subscription Agreement (Pan-African Investment Company, LLC)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the each Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have duly executed this Agreement and delivered the same to the Investor.
(b) The Company shall have executed and delivered caused the Transfer Agent to credit the Exchange Shares to the Investor or its designee's balance account through the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the ClosingDTC Fast Automated Transfer Program.
(c) Each The Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing (if applicable) of the Other Investors shall have (i) executed agreements identical to this Agreement (Company and each of its Subsidiaries in such corporation's jurisdiction of incorporation issued by the “Other Agreements”) (Secretary of State or other than (i) proportional changes (comparable authority of such jurisdiction of incorporation as of a date within 10 days of the “Proportionate Changes”) Closing Date, or, in the numbers reflecting the different dollar amount case of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c))California, (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes)as soon thereafter as is reasonably practicable.
(d) The Investor shall have received From the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of date hereof to the Closing Date, (i) trading in substantially the form Common Stock shall not have been suspended by the SEC or the Principal Market, and, (ii) at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited or threatened either (A) in writing by the SEC or the Principal Market or (B) except as described in Schedule 2(b)(v), by falling below the minimum listing maintenance requirements of Exhibit C attached heretothe Principal Market, or minimum prices shall not have been established on securities whose trades are reported by such service, or on the Principal Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Investor, makes it impracticable or inadvisable to consummate the transactions contemplated by this Agreement.
(e) The Company shall have delivered to the Company’s transfer agentInvestor a certificate, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered reasonably acceptable to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificateInvestor, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions as adopted by the Company's board of directors approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the BylawsBylaws of the Company, each as in effect as of at the Closing, in the form attached hereto as Exhibit E..
(jf) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak were made as of a specific date, which shall be true and correct as of such specified specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.
(k) The Common Stock (I) shall be designated for quotation or listed on reasonably acceptable to 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 MarketInvestor.
(lg) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale issuance of the SecuritiesExchange Shares.
(mh) There shall have been no Material Adverse Effect with respect to the Company since the date hereof.
(i) {Left Blank Intentionally.}
(j) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
Samples: Exchange Agreement (Tri Valley Corp)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor to consummate the Exchange hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) 6.1 The Company and each Material Subsidiary (as the case may be) shall have executed this Agreement and delivered the same to the Investor.
(b) The Company shall have duly executed and delivered to the Investor each of the Second Amended and Restated Notes Exchange Documents to which it is a party and the Second Amended Company shall have duly executed and Restated Warrants being issued to such delivered the Investor at the ClosingExchanged Notes.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) 6.2 The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, Xxxxxx Xxxxxxxx LLP, the Company’s outside 's counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached heretoacceptable to the Investor.
(e) 6.3 The Company shall have delivered to the Company’s transfer agent, with Investor a copy to of the Investors, Irrevocable Transfer Agent Instructions Instructions, in the form of Exhibit D attached heretoacceptable to the Investor, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(f) 6.4 The Company shall have delivered to such Buyer the Investor a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Material Subsidiaries in each such entity’s 's jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, jurisdiction of formation as of a date within 10 ten (10) days of the Closing Date.
(g) 6.5 The Company shall have delivered to such Buyer the Investor a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s 's and each Material Subsidiary's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Companyoffice) of each jurisdiction in which the Company and each Material Subsidiary conducts business and is required to so qualify, as of a date within 10 ten (10) days of the Closing Date.
(h) 6.6 The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Delaware Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
6.7 Each Material Subsidiary shall have delivered to the Investor a certified copy of its Certificate of Incorporation (ior such equivalent organizational document) as certified by the Secretary of State (or comparable office) of such Material Subsidiary's jurisdiction of incorporation within ten (10) days of the Closing Date.
6.8 The Company and each Material Subsidiary shall have delivered to the Investor a certificate, in the form acceptable to the Investor, executed by the Secretary of the Company and each Material Subsidiary and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby consistent with Section 2.2 as adopted by the Board Company's and each Material Subsidiary's board of directors in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation of the Company and the organizational documents of each Material Subsidiary and (iii) the BylawsBylaws of the Company and the bylaws of each Material Subsidiary, each as in effect as of at the Closing, in the form attached hereto as Exhibit E..
(j) The representations 6.9 Each and warranties every representation and warranty of the Company hereunder shall be true and correct correct, in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effectrespects, which shall be true and correct in all 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 correct, in all material respects, as of such specified specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor 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 Investor in the form attached hereto as Exhibit F.acceptable to the Investor.
(k) 6.10 The Company shall have delivered to the Investor a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding on the Closing Date immediately prior to the Closing.
6.11 The Common Stock (IA) shall be designated for quotation or listed (as applicable) on the Principal Market and (IIB) 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 (AI) in writing by the SEC or the Principal Market or (BII) by falling below the minimum listing maintenance requirements of the Principal Market.
(l) 6.12 The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Exchanged Securities, including without limitation, those required by the Principal Market, if any.
(m) 6.13 No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Exchange Documents.
6.14 Since the date of execution of this Agreement, no event or series of events shall have occurred that would reasonably be expected to have or result in a Material Adverse Effect.
6.15 The Company shall have obtained approval of the Principal Market to list or designate for quotation (as the case may be) the Exchanged Conversion Shares.
6.16 In accordance with the terms of the Security Documents, the Company shall have delivered to the Investor (A) original certificates (I) representing the Material Subsidiaries' shares of capital stock to the extent such Material Subsidiary is a corporation or otherwise has certificated equity and (II) representing all other equity interests and all promissory notes required to be pledged thereunder, in each case, accompanied by undated stock powers and allonges executed in blank and other proper instruments of transfer and (B) appropriate financing statements on Form UCC-1 to be duly filed in such office or offices as may be necessary or, in the opinion of the Investor, desirable to perfect the security interests in all assets of the Company and its Material Subsidiaries (the “Perfection Certificate”).
6.17 The Company shall have delivered or caused to be delivered to the Investor (A) certified copies of requests for copies of information on Form UCC-11, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries and which are filed in such office or offices as may be necessary or, in the opinion of the Investor, desirable to perfect the security interests purported to be created by the Security Agreement, together with copies of such financing statements, none of which, except as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Agreement), and the results of searches for any tax Lien and judgment Lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Investor, shall not show any such Liens; and (B) a Perfection Certificate, duly completed and executed by the Company and each of its Material Subsidiaries, in form and substance satisfactory to the Investor.
6.18 The Investor shall have received the Security Agreement, duly executed by the Company and each of its Material Subsidiaries together with the original stock certificates representing all of the equity interests and all promissory notes required to be pledged thereunder, accompanied by undated stock powers and allonges executed in blank and other proper instruments of transfer.
6.19 With respect to the Intellectual Property Rights, if any, of the Company or any of its Material Subsidiaries, the Company and/or such Material Subsidiaries, as applicable, shall have duly executed and delivered to the Investor each Assignment For Security for the Intellectual Property Rights of the Company and its Material Subsidiaries, in the form attached as Exhibit A to the Security Agreement.
6.20 The closing of the purchase of the Existing Note pursuant to the Purchase Agreement shall have occurred.
6.21 The Company and its Material Subsidiaries shall have delivered to the Investor such other documents documents, instruments or certificates relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
Samples: Exchange Agreement (Interpace Diagnostics Group, Inc.)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have duly executed and delivered to the Investor (i) this Agreement, (ii) the Series C Notes (allocated in such principal amounts as the Investor shall request) being issued to the Investor at the Closing pursuant to this Agreement and delivered (iii) the same Series D Notes (allocated in such principal amounts as the Investor shall request) being issued to the InvestorInvestor at the Closing pursuant to this Agreement.
(b) The Each of the Company and its Subsidiaries shall have duly executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the ClosingReaffirmation Agreement.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached hereto.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate, in the form attached hereto as Exhibit E, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing.
(d) Each of the Investors (other than the Investor) shall have duly executed and delivered to the Investor a Consent.
(e) The Investor shall have received the opinions of JPF Securities Law, LLC, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit F attached hereto.
(f) The Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit G attached hereto hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(g) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as Exhibit E.of a date within five days of the Closing Date.
(h) The Company shall have delivered to the Investor a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity's jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate (or a fax or pdf copy of such certificate) evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State of Delaware, which is the only jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) days of the Closing Date.
(j) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(k) The representations and warranties of the Company hereunder in Section 4(b) shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, executed by the Chief Executive Officer or Chief Financial 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 Investor in the form attached hereto as Exhibit F.H.
(kl) 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.
(lm) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities, including, without limitation, any approvals or notifications required by the Principal Market.
(m) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
Samples: Amendment and Exchange Agreement (Earth Biofuels Inc)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor to consummate the Exchange hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) 6.1 The Company and each Material Subsidiary (as the case may be) shall have executed this Agreement and delivered the same to the Investor.
(b) The Company shall have duly executed and delivered to the Investor each of the Second Amended and Restated Notes Exchange Documents to which it is a party and the Second Amended and Restated Warrants being issued to such Investor at the Closing.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached hereto.
(e) The Company shall have duly executed and delivered to the Company’s transfer agent, with a copy to Investor the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached heretoNew Exchanged Convertible Note.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation 6.2 Each and good standing every representation and warranty of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as Exhibit E.
(j) The representations and warranties of the Company hereunder shall be true and correct correct, in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effectrespects, which shall be true and correct in all 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 correct, in all material respects, as of such specified specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor 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 Investor in the form attached hereto as Exhibit F.acceptable to the Investor.
(k) 6.3 The Common Stock (IA) shall be designated for quotation or listed (as applicable) on the Principal Market and (IIB) 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 (AI) in writing by the SEC or the Principal Market or (BII) by falling below the minimum listing maintenance requirements of the Principal Market.
(l) 6.4 The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the New Exchanged Securities, including without limitation, those required by the Principal Market, if any.
(m) 6.5 No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Exchange Documents.
6.6 Since the date of execution of this Agreement, no event or series of events shall have occurred that would reasonably be expected to have or result in a Material Adverse Effect.
6.7 The Company shall have obtained approval of the Principal Market to list or designate for quotation (as the case may be) the New Exchanged Conversion Shares.
6.8 The Company and its Material Subsidiaries shall have delivered to the Investor such other documents documents, instruments or certificates relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
Samples: Amendment and Exchange Agreement (Interpace Diagnostics Group, Inc.)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have duly executed and delivered this Agreement and delivered the same to the Investor.
(b) The Company shall have duly executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the ClosingNotes.
(c) Each The Company shall have duly executed and delivered to the Investor a copy of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing DateIrrevocable Transfer Agent Instructions, in substantially the form of Exhibit C attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(ed) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer Investor a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 ten (10) days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(he) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State (or comparable office) of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(if) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as Exhibit E.D.
(jg) The representations and warranties of the Company hereunder contained herein shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing DateAgreement. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.E.
(kh) The Company shall have delivered to the Investor a Consent and Amendment, by and among the Company, the Investor and Wachovia Capital Finance Corporation (Western) (the “Senior Lender”), in the form attached hereto as Exhibit F, duly executed and delivered by the Company and the Senior Lender, pursuant to which the Senior Lender consents to the transactions contemplated hereby as required pursuant to Section 6(b) of that certain Subordination Agreement dated as of May 4, 2007, by and between the Senior Lender and the Investor (the “Subordination Agreement”).
(i) The Senior Lender shall have duly executed and delivered to the Investor the Letter Agreement, in the form attached hereto as Exhibit G. pursuant to which the Senior Lender and the Investor agree to amend the defined term “Standstill Period” in the Subordination Agreement to mean “the period beginning July 30, 2009, through and including the first to occur of: (a) the date upon which the Discharge of Senior Indebtedness shall have occurred, or (b) January 30, 2010”.
(j) 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.
(lk) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of transactions contemplated hereby.
(l) The parties to the SecuritiesRatification Agreement shall have duly executed and delivered the Ratification Agreement to the Investor.
(m) The Company shall have paid to Xxxxxxx Xxxx & Xxxxx LLP the Investor Counsel Expense in accordance with Section 4(d) above.
(n) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
Samples: Second Amendment and Exchange Agreement (Image Entertainment Inc)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed this Agreement and delivered to such Investor (i) this Agreement, (ii) the same to Replacement Warrants (in such denominations as such Investor shall request) and (iii) the InvestorInvestor Preferred Shares.
(b) The Company shall have executed and delivered or caused to be delivered to the Investor the Second Amended and Restated Notes and Investor Redemption Amount by wire transfer of immediately available funds pursuant to the Second Amended and Restated Warrants being issued to such Investor at wire instructions provided by the ClosingInvestor.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as been named in all of the Closing Dateclosing deliverables pursuant to the Preferred SPA in a manner identical to the buyers set forth in the Preferred SPA, in substantially provided that such deliverables will not include any rights to the form issuance of Exhibit C attached heretoPreferred Shares pursuant to the Private Placement Transaction.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(hd) The Company shall have delivered to the Investor a certified copy notification from Israel counsel to the Company that it has filed with the Israel Registrar of Companies an Amended and Restated Articles of Association, setting forth the relative terms, preferences and rights of the Certificate of Incorporation as certified by Preferred Shares, in the Secretary of State of form attached to the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing DatePreferred SPA.
(ie) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b) of the November SPA after giving effect to the amendments contemplated by this Agreement.
(f) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Datedate hereof, as to (i) the resolutions approving authorizing the transactions contemplated hereby set froth herein as adopted by the Company's Board in a form reasonably acceptable to of Directors (the Investor"Resolutions"), and (ii) the Certificate Amended and Restated Articles of Incorporation and (iii) the BylawsAssociation, each as in effect as of at the ClosingClosing Date, in the form attached hereto as Exhibit E.D.
(jg) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.E.
(k) 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.
(lh) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale issuance of the SecuritiesReplacement Warrants and the Investor Preferred Shares.
(mi) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
(j) The Company shall have met all conditions necessary to consummate the Private Placement Transaction, which will result in gross proceeds to the Company of not less than US$ 2,000,000, after the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Redemption, Amendment and Exchange Agreement (Commtouch Software LTD)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed this Agreement and delivered the same to the Investor.
(b) The Company shall have executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants Note being issued to such Investor at the Closing.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount amounts of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)Other Investors’ Notes), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated the new Notes and Warrants identical being issued to such Other Investors at the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes)Closing.
(d) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached hereto.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as Exhibit E.
(j) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, executed by the Chief Executive Financial 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 Investor in the form attached hereto as Exhibit F.B.
(k) 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.
(le) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(mf) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have duly executed this Agreement and delivered the same to the Investor.
(b) The Company shall have executed and delivered caused the Transfer Agent to credit the Exchange Shares to the Investor or its designee's balance account through the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the ClosingDTC Fast Automated Transfer Program.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached hereto.
(e) The Company shall have delivered to the Company’s transfer agentInvestor a certificate evidencing the incorporation and good standing (if applicable) of the Company and each of its Subsidiaries in such corporation's jurisdiction of incorporation issued by the Secretary of State or other comparable authority of such jurisdiction of incorporation as of a date within 10 days of the Closing Date, with a copy or, in the case of California, as soon thereafter as is reasonably practicable.
(d) From the date hereof to the InvestorsClosing Date, Irrevocable Transfer Agent Instructions (i) trading in the form Common Stock shall not have been suspended by the SEC or the Principal Market, and, (ii) at
(e) any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited or threatened either (A) in writing by the SEC or the Principal Market or (B) except as described in Schedule 2(b)(v), by falling below the minimum listing maintenance requirements of Exhibit D attached heretothe Principal Market, or minimum prices shall not have been established on securities whose trades are reported by such service, or on the Principal Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Investor, makes it impracticable or inadvisable to consummate the transactions contemplated by this Agreement.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate, in the form reasonably acceptable to the Investor, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions as adopted by the Company's board of directors approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the BylawsBylaws of the Company, each as in effect as of at the Closing, in the form attached hereto as Exhibit E..
(jg) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak were made as of a specific date, which shall be true and correct as of such specified specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.
(k) The Common Stock (I) shall be designated for quotation or listed on reasonably acceptable to 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 MarketInvestor.
(lh) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale issuance of the SecuritiesExchange Shares.
(mi) There shall have been no Material Adverse Effect with respect to the Company since the date hereof.
(j) {Left Blank Intentionally.}
(k) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
Samples: Exchange Agreement (Tri Valley Corp)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have duly executed this Agreement and delivered the same to the Investor.
(b) The Company shall have executed and delivered caused the Transfer Agent to credit the Exchange Shares to the Investor or its designee's balance account through the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the ClosingDTC Fast Automated Transfer Program.
(c) Each The Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing (if applicable) of the Other Investors shall have (i) executed agreements identical to this Agreement (Company and each of its Subsidiaries in such corporation's jurisdiction of incorporation issued by the “Other Agreements”) (Secretary of State or other than (i) proportional changes (comparable authority of such jurisdiction of incorporation as of a date within 10 days of the “Proportionate Changes”) Closing Date, or, in the numbers reflecting the different dollar amount case of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c))California, (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes)as soon thereafter as is reasonably practicable.
(d) The Investor shall have received From the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of date hereof to the Closing Date, (i) trading in substantially the form Common Stock shall not have been suspended by the SEC or the Principal Market, and, (ii) at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited or threatened either (A) in writing by the SEC or the Principal Market or (B) except as described in Schedule 2(b)(v), by falling below the minimum listing maintenance requirements of Exhibit C attached heretothe Principal Market, or minimum prices shall not have been established on securities whose trades are reported by such service, or on the Principal Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Investor, makes it impracticable or inadvisable to consummate the transactions contemplated by this Agreement.
(e) The Company shall have delivered to the Company’s transfer agentInvestor a certificate, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered reasonably acceptable to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificateInvestor, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions as adopted by the Company's board of directors approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the BylawsBylaws of the Company, each as in effect as of at the Closing, in the form attached hereto as Exhibit E..
(jf) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak were made as of a specific date, which shall be true and correct as of such specified specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.
(k) The Common Stock (I) shall be designated for quotation or listed on reasonably acceptable to 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 MarketInvestor.
(lg) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale issuance of the SecuritiesExchange Shares.
(mh) There shall have been no Material Adverse Effect with respect to the Company since the date hereof.
(i) {Left Blank Intentionally.}
(j) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
Samples: Exchange Agreement (Tri Valley Corp)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have delivered to the Investor its Redemption Payment Amount and 2008 Interest Payment (plus, in the case of Portside Growth and Opportunity Fund, the amounts due pursuant to Section 4(c) hereof) and Xxxxx Fargo Bank, N.A. shall have delivered to the Investor its LC Reduction Amount.
(b) The Company shall have executed this Agreement and delivered the same to the Investor.
(bc) The Company shall have executed and delivered to the Investor the Second Amended and Restated Notes Notes, the Common Shares and the Second Amended and Restated Warrants being issued to such Investor at the Closing.
(cd) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “"Other Agreements”") (other than (i) proportional changes (the “"Proportionate Changes”") in the numbers reflecting the different dollar amount of such Investor’s Notes 's Notes, the number of Common Shares being issued to such Investor and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated 's Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended the new Notes, the Common Shares and Restated Notes and the Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached hereto.
(e) The Company shall have delivered to the Company’s 's transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D C attached hereto.
(f) The Investor shall have received the opinion of Xxxxxx Xxxxxxxx & Markiles, LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit Dattached hereto.
(g) The Company shall have delivered to such Buyer Investor a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s 's jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(gh) The Company shall have delivered to such Buyer Investor a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s 's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(hi) The Company shall have delivered to the Investor a certified copy of the Certificate Articles of Incorporation of the Company as certified by the Secretary of State of the State of Delaware Florida (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(ij) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate Articles of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as Exhibit E.
(jk) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.
(kl) The Company and VM Investors LLC shall have entered into an amended and restated Lock-Up Agreement in the form attached hereto as Exhibit G (the "Lock-Up Agreement").
(m) Each of the Company's and VM Investors LLC's directors, executive officers and affiliates shall have entered into a lock-up agreement in the form attached hereto as Exhibit H (the "New Lock-Up Agreements").
(n) Each Subsidiary of the Company that has entered into a Guaranty on or prior to the date hereof in accordance with the terms of the Security Documents shall have executed and delivered to the Investor an acknowledgement and ratification agreement in the form attached hereto as Exhibit I.
(o) 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.
(lp) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(mq) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
Samples: Amendment and Exchange Agreement (DigitalFX International Inc)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the each Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the each Investor’s sole benefit and may be waived by the such Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have duly executed and delivered this Agreement and delivered the same to the such Investor.
(b) The Company shall have duly executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued (i) to such Investor at the ClosingExchanged Notes and (ii) irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver to each Investor, on the Closing Date, the Common Shares by crediting the number of Common Shares set forth opposite such Investor’s name in column (5) of Schedule I attached hereto to such Investor’s balance account with DTC.
(c) Each The Company shall have duly executed and delivered to such Investor a copy of the Other Investors Irrevocable Transfer Agent Instructions, in the form of Exhibit B attached hereto, which instructions shall have (i) executed agreements identical been delivered to this Agreement (and acknowledged in writing by the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such InvestorCompany’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes)transfer agent.
(d) The Investor shall have received (A) the opinion of ManattXxxxxx X. Xxxxxxxxx, Pxxxxx & Pxxxxxxx, LLPP.C., the Company’s outside U.S. counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C C-1 attached hereto and (B) the opinion of Harneys Westwood & Riegels, the Company’s British Virgin Islands outside counsel, dated as of the Closing Date, in substantially the form of Exhibit C-2 attached hereto.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer Investor a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 ten (10) days of the Closing Date.
(gf) The Company shall have delivered to such Buyer Investor a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Companyoffice) of each jurisdiction in which the Company conducts business and is required to be so qualifyqualified, as of a date within 10 ten (10) days of the Closing Date.
(g) The Company shall have delivered to such Investor a certified copy of the Memorandum of Association as certified by the Secretary of State (or comparable office) of its jurisdiction of incorporation within ten (10) days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the such Investor, (ii) the Certificate Memorandum of Incorporation Association and (iii) the BylawsArticles of Association, each as in effect as of the Closing, in the form attached hereto as Exhibit E.D.
(ji) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Such Investor shall have received a certificate, 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 such Investor in the form attached hereto as Exhibit F.E.
(j) The payment required pursuant to Section 2.1 of that certain Sale and Purchase Agreement, dated as of March 31, 2009, by and among the Investors, Chestnut Fund Ltd. and Xxx Xxx WU shall have been delivered to the Investors and Chestnut Fund Ltd..
(k) The Company shall have paid to Xxxxxxx Xxxx & Xxxxx LLP the SRZ Legal Expenses and to DKR the DKR Transaction Expenses.
(l) 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.
(lm) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securitiestransactions contemplated hereby.
(mn) The Company shall have delivered to the such Investor such other documents relating to the transactions contemplated by this Agreement as the such Investor or its counsel may reasonably request.
Appears in 1 contract
Samples: Amendment and Exchange Agreement (Qiao Xing Universal Telephone Inc)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have duly executed this Agreement and delivered the same to the Investor.
(b) The Company shall have executed and delivered irrevocable written instructions to the Transfer Agent for the Common Stock to credit the Exchange Shares to the Investor or its designee’s balance account through the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the ClosingDTC Fast Automated Transfer Program.
(c) Each of From the Other Investors shall have date hereof to the Closing Date, (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) trading in the numbers reflecting Common Stock shall not have been suspended by the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants Commission or Nasdaq, and (ii) Section 4(c))trading in securities generally as reported by Bloomberg L P shall not have been suspended or limited or threatened either (A) in writing by the Commission or Nasdaq or (B) by falling below the minimum listing maintenance requirements of Nasdaq, (ii) satisfied or waived all conditions minimum prices shall not have been established on securities whose trades are reported by such service, or on Nasdaq, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Investor, makes it impracticable or inadvisable to consummate the closings transactions contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes)this Agreement.
(d) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached hereto.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate, in the form reasonably acceptable to the Investor, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions as adopted by the Company’s board of directors approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the BylawsBylaws of the Company, each as in effect as of at the Closing, in the form attached hereto as Exhibit E..
(je) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak were made as of a specific date, which shall be true and correct as of such specified specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.
(k) The Common Stock (I) shall be designated for quotation or listed on reasonably acceptable to 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 MarketInvestor.
(lf) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale issuance of the SecuritiesExchange Shares.
(mg) There shall have been no Material Adverse Effect with respect to the Company since the date hereof.
(h) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed this Agreement, the 2007 Registration Rights Agreement and the Security Documents and delivered the same to the Investor.
(b) The Company shall have executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such the Investor at the Closing.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes Agreements and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c))2007 Registration Rights Agreement, (ii) satisfied or waived all conditions to the closings contemplated by such agreements and agreements, (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes)) and (iv) received their applicable Redemption Amount and Unpaid Interest Amount.
(d) The Investor shall have received the opinion opinions of Manatt, Pxxxxx (i) Xxxxx & Pxxxxxxx, XxXxxxxx LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C G-1 attached hereto and (ii) the Company’s several counsel, dated as of the Closing Date, in the form of Exhibit G-2 attached hereto.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer Investor a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(gf) The Company shall have delivered to such Buyer the Investor a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Companyoffice) of each jurisdiction in which the Company conducts business and is required to be so qualifyqualified, as of a date within 10 days of the Closing Date.
(hg) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State (or comparable office) of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(ih) The (i)The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as Exhibit E.H-1.
(jii) Each of the Guarantors shall have delivered to the Investor a certificate, executed by the Secretary of such Guarantor and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board of Directors of such Guarantor in a form reasonably acceptable to the Investor, (ii) the certificate of incorporation or formation or such Guarantor and (iii) the Bylaws of such Guarantor, each as in effect as of the Closing, in the form attached hereto as Exhibit H-2.
(i) The representations and warranties of the Company and the Guarantors hereunder and under each other Transaction Document shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 and the Guarantors shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company or the Guarantors at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.I.
(kj) The Common Stock (including, without limitation, the Existing Conversion Shares) (I) shall be designated for quotation or listed on The NASDAQ Global Market (the “Principal Market Market”) (provided that the Company shall have five (5) Business Days following the Closing Date to list all of the Conversion Shares and the Warrant Shares) 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.
(lk) The Subject to obtaining the Stockholder Approval, the Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(l) All rights of first refusal, participation, or similar rights that would entitle any Person to participate in the transactions contemplated hereby shall have expired or have been waived.
(m) The Company shall have paid to [ ] the Investor Counsel Expense, and to Xxxxx, Xxxxxx & Xxxxxx LLP the First Lien Collateral Agent and Second Lien Collateral Agent counsel fees and expenses, and to the Bank of New York its annual administrative fee and its acceptance fee.
(n) The Notes shall be secured pursuant to the terms of the Security Documents.
(o) The Company shall have paid the Investor the Redemption Amount and Unpaid Interest Amount.
(p) Each Guarantor shall have executed and delivered to the Investor a Guarantee.
(q) The Company shall have delivered to the Investor such documentation reasonably requested as required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations.
(r) The Company shall have performed all of its obligations required to be performed under the Security Documents.
(s) The Company and its board shall have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation or the laws of the jurisdiction of its formation or otherwise which is or could become applicable to any Investor as a result of the Redemption and Exchange Transaction, including without limitation, the Company’s issuance of securities and any Lender’s ownership of the securities.
(t) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
Samples: Amendment, Redemption and Exchange Agreement (WorldSpace, Inc)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed this Agreement and delivered the same to the Investor.
(b) The Company shall have executed and delivered to the Investor the Series C Warrants being issued to such Investor as of the date hereof.
(c) The Company shall have executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Series D Warrants being issued to such Investor at the Closing.
(cd) Each of the Other Investors The Company shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions delivered to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical Company's transfer agent, with a copy to the Investors, a letter stating that the Irrevocable Transfer Agent Instructions dated October 5, 2005 shall also apply to the Second Amended and Restated Notes Conversion Shares and the Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes)Registration Rights Agreement.
(de) The Such Investor shall have received the opinion of ManattXxxxxx, Pxxxxx Xxxxxx-Xxxxxxx, Colt & Pxxxxxxx, Mosle LLP, the Company’s 's outside U.S. counsel, and Zxx Xxxxxx, Esq.Xxxxx Xxxxxx Xxxxxxx, the Company’s internal general 's outside Australian counsel, each dated as of the Closing Date, similar in substantially the form of Exhibit C attached hereto.
(e) The Company shall have delivered all material respects to the Company’s transfer agent, with a copy opinions delivered pursuant to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached heretoAmendment Agreement.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, and (ii) the Certificate of Incorporation and (iii) the BylawsConstitution, each as in effect as of the Closing, similar in all material respects to the form attached hereto as Exhibit E.certificate executed by the Secretary of the Company delivered pursuant to the Amendment Agreement.
(jg) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be remain true and correct as of such specified specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default Default or Event of Default shall have occurred and be continuing as of on the Closing Datedate hereof either immediately before or after giving effect to this Agreement in accordance with its terms. The Investor shall have received a certificate, 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 Investor Investor, similar in all material respects to the form attached hereto as Exhibit F.certificate executed by the Chief Executive Officer of the Company delivered pursuant to the Amendment Agreement.
(kh) The Common Stock ADRs (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.
(li) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the issue and sale of the Securities, including, without limitation, any approvals or notifications required by the Principal Market.
(mj) The Company shall have delivered to the Investor such other documents relating Investor's Investor Counsel Expense by wire transfer of immediately available funds pursuant to the transactions contemplated wire instructions provided by this Agreement as the Investor.
(k) The Company shall have delivered to the Investor such Investor's Letter Agreement Payment Amount by wire transfer of immediately available funds pursuant to the wire instructions provided by the Investor on or its counsel may prior to the earlier to occur of (x) the Closing Date, (y) the date of the consummation of the Secondary Financing and (z) March 31, 2007.
(l) The Company shall have delivered duly executed and delivered copies of the transaction documents with respect to the Financing Transaction to the Investor, which shall be in form and substance reasonably requestsatisfactory to the Investor and the Financing Transactions shall have been consummated.
(m) The Stockholder Approval (as defined below) shall have been obtained.
Appears in 1 contract
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have duly executed and delivered this Agreement and delivered the same to the Investor.
(b) The Company shall have duly executed and delivered to the Investor the Second Amended and Restated Exchanged Notes and the Second Amended and Restated Warrants being issued to such Investor at the ClosingExchanged Warrants.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLPDLA Piper LLP(US), the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C D attached hereto.
(ed) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer Investor a certificate (or a fax or pdf PDF copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 ten (10) days of the Closing Date.
(ge) The Company shall have delivered to such Buyer the Investor a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Companyoffice) of each jurisdiction in which the Company conducts business and is required to be so qualifyqualified, as of a date within 10 ten (10) days of the Closing Date.
(hf) The Company shall have delivered to the Investor a certified copy of the Certificate Articles of Incorporation as certified by the Secretary of State (or comparable office) of the State of Delaware Nevada (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(ig) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate Articles of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as Exhibit E.
(jh) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other AgreementsAgreement, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, executed by the Chief Executive Officer President 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 Investor in the form attached hereto as Exhibit F.
(ki) 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.
(lj) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale transactions contemplated hereby.
(k) The Company shall have paid to Xxxxxxx Xxxx & Xxxxx LLP the Investor Counsel Expense in accordance with Section 4(e) above.
(l) The Exchanged Notes and Transaction Documents shall be secured pursuant to the terms of the SecuritiesAmended and Restated Security Agreement in the same manner and to the same extent as the Existing Notes.
(m) The Company shall have delivered to the Investor the fully executed Intercreditor Agreement in the form attached hereto as Exhibit G. (n) The Company shall have delivered to the Investor that certain Capitalization Letter Agreement dated as of September 12, 2008 from the Company and approved and accepted by the Investor.
(o) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
Samples: Amendment and Exchange Agreement (Stinger Systems, Inc)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed and delivered to the Investor (i) this Agreement and delivered (ii) the same to the InvestorAmended and Restated Notes (in such principal amounts as such Investor shall request).
(b) The Company shall have executed and delivered credited the Investor Conversion Shares to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the ClosingDTC Account.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Investor shall have received the opinion of ManattXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Pxxxxx & Pxxxxxxx, LLPPC, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C B attached hereto.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(id) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Datedate hereof, as to (i) the resolutions approving authorizing the transactions contemplated hereby set forth herein as adopted by the Company’s Board of Directors in a form reasonably acceptable to the Investor, Investor (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as Exhibit E.“Resolutions”).
(je) The Conversion Shares and the Investor Conversion Shares shall be listed upon the Principal Market.
(f) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.C.
(k) 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.
(lg) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale issuance of the SecuritiesConversion Shares and the Amended and Restated Notes.
(mh) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have duly executed and delivered this Agreement and delivered the same to the Investor.
(b) The parties to the Ratification Agreements shall have duly executed and delivered the Ratification Agreements to the Investor.
(c) The Company shall have duly executed and delivered to the Investor the Second Amended and Restated Notes Exchanged Note and the Second Amended and Restated Warrants being issued to such Investor at the Closing.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes)Exchanged Warrants.
(d) The Company shall have duly executed and delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(e) The Investor shall have received the opinion of Manatt, Pxxxxx Xxxxxx & PxxxxxxxXxxxxx, LLP, the Company’s 's outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached hereto.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D F attached hereto.
(f) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate Articles of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as Exhibit E.G. SRZ-10741339.9 7
(jg) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.H.
(kh) 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.
(li) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securitiestransactions contemplated hereby.
(mj) The Exchanged Notes and Transaction Documents shall be secured pursuant to the terms of the Security Documents in the same manner and to the same extent as the Existing Notes.
(k) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
Samples: Amendment and Exchange Agreement (China VoIP & Digital Telecom Inc.)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed and delivered to such Investor (i) this Agreement and delivered (ii) the same to the InvestorReplacement Notes (in such principal amounts as such Investor shall request).
(b) The Company shall have executed and (i) delivered or caused to be delivered to the Investor the Second Amended and Restated Notes Investor Redemption Amount, the Redemption Interest Release Amount and the Second Amended Share Exchange Interest Release Amount by wire transfer of immediately available funds pursuant to the wire instructions provided by the Investor and Restated Warrants being issued to (ii) executed and delivered the stock certificates (in such denominations as the Investor at shall request) for the ClosingInvestor Exchange Shares.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Investor shall have received the opinion opinions of ManattMilbank, Pxxxxx Tweed, Hadley & Pxxxxxxx, McCloy LLP, the Company’s 's outside counsel, and Zxx XxxxxxBrian O'Donogxxx, Esq., the Company’s internal general counselxhe Xxxxxxy's General Counsel, each dated as of the Closing Datexxxx xxxxxx, in xx substantially the form of Exhibit C Exhibits C-1 and C-2 attached hereto.
(d) The Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation, to the extent set forth in Section 3(a) of the Securities Purchase Agreement, as of a date within 10 days of the date hereof.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer Investor a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(g) The Company shall have delivered to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s 's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, State of New York as of a date within 10 days of the Closing Datedate hereof.
(hf) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) 10 days of the Closing Datedate hereof.
(ig) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b) of the Securities Purchase Agreement after giving effect to the amendments contemplated by this Agreement in a form reasonably satisfactory to the Investor.
(h) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Datedate hereof, as to (i) the resolutions approving authorizing the transactions contemplated hereby set froth herein as adopted by the Company's Board of Directors in a form reasonably acceptable to the InvestorInvestor (the "RESOLUTIONS"), (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of at the Closingdate hereof, in the form attached hereto as Exhibit E.D.
(i) The Company shall have delivered to the Investor a letter from the Company's transfer agent (x) certifying the number of shares of Common Stock outstanding as of a date within five days of the date hereof and (y) acknowledging that the Irrevocable Transfer Agent Instructions delivered to the Trustee on December 31, 2002 shall also apply to the Replacement Notes and the Redemption Warrants.
(j) 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 Initial 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 date hereof, either in writing by the SEC or the Principal Market; and the Exchange Shares, the Replacement Conversion Shares and the Initial Warrant Shares shall be listed upon the Principal Market .
(k) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.
(k) 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.E.
(l) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale issuance of the SecuritiesReplacement Notes.
(m) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
Samples: Redemption, Amendment and Exchange Agreement (Viewpoint Corp/Ny/)
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s 's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have duly executed this Agreement and delivered the same to the Investor.
(b) The Company shall have executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Warrants being issued to such Investor at the ClosingInvestor.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Investor shall have received the opinion of Manatt, Pxxxxx & Pxxxxxxx, LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C attached hereto.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer Investor a certificate (or a fax or pdf copy of such certificate) evidencing the formation incorporation and good standing (if applicable) of the Company and each of its Subsidiaries in such entity’s corporation's jurisdiction of formation incorporation issued by the Secretary of State (or other comparable office) authority of such jurisdiction, jurisdiction of incorporation as of a date within 10 days of the Closing Date.
(gd) The Company shall have delivered From the date hereof to such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Closing Date, (i) trading in the Common Stock shall not have been suspended by the SEC or the NYSE Amex, and, (ii) at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited or threatened either (A) in writing by the SEC or the NYSE Amex or (B) except as described in Schedule 2(b)(v), by falling below the minimum listing maintenance requirements of the NYSE Amex, or minimum prices shall not have been established on securities whose trades are reported by such service, or on the NYSE Amex, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Investor, makes it impracticable or inadvisable to consummate the transactions contemplated by this Agreement.
(h) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(ie) The Company shall have delivered to the Investor a certificate, in the form reasonably acceptable to the Investor, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions as adopted by the Company's board of directors approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the BylawsBylaws of the Company, each as in effect as of at the Closing, in the form attached hereto as Exhibit E..
(jf) The representations and warranties of the Company hereunder shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak were made as of a specific date, which shall be true and correct as of such specified specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.
(k) The Common Stock (I) shall be designated for quotation or listed on reasonably acceptable to 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 MarketInvestor.
(lg) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale amendment and restatement of the SecuritiesExisting Warrants.
(mh) There shall have been no Material Adverse Effect with respect to the Company since the date hereof.
(i) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company and the Guarantors shall have executed this Agreement and the First Amendment to First Lien Security Agreement, the First Amendment to Second Lien Security Agreement and the First Amendment to Intercreditor Agreement and delivered the same to the Investor.
(b) The Company shall have executed and delivered to the Investor the Second Amended and Restated Notes and the Second Amended and Restated Forbearance Warrants being issued to such the Investor at the Closing.
(c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the “Other Agreements”) (other than (i) proportional changes (the “Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Forbearance Warrants identical to the Second Amended and Restated Notes and Second Amended and Restated Forbearance Warrants of the Investor hereunder (other than the Proportionate Changes).
(d) The Investor shall have received the opinion opinions of Manatt, Pxxxxx (i) Xxxxx & Pxxxxxxx, XxXxxxxx LLP, the Company’s outside counsel, and Zxx Xxxxxx, Esq., the Company’s internal general counsel, each dated as of the Closing Date, in substantially the form of Exhibit C G-1 attached hereto and (ii) the Company’s general counsel, dated as of the Closing Date, in the form of Exhibit G-2 attached hereto.
(e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto.
(f) The Company shall have delivered to such Buyer Investor a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date.
(gf) The Company shall have delivered to such Buyer the Investor a certificate (or a fax or pdf copy of such certificate) evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Companyoffice) of each jurisdiction in which the Company conducts business and is required to be so qualifyqualified, as of a date within 10 days of the Closing Date.
(hg) The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of State (or comparable office) of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date.
(h) (i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby and resolving to recommend to the stockholders of the Company that they approve the Resolutions as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as Exhibit E.H-1.
(jii) Each of the Guarantors shall have delivered to the Investor a certificate, executed by the Secretary of such Guarantor and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board of Directors of such Guarantor in a form reasonably acceptable to the Investor, (ii) the certificate of incorporation or formation or such Guarantor and (iii) the Bylaws of such Guarantor, each as in effect as of the Closing, in the form attached hereto as Exhibit H-2.
(i) The representations and warranties of the Company and the Guarantors hereunder and under each other Transaction Document shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though 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 and the Guarantors shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company or the Guarantors at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, 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 Investor in the form attached hereto as Exhibit F.I.
(j) The Company shall have delivered to such Investor a Voting Agreement, in the form attached hereto as Exhibit J, executed by the Company and each of Xxxx X. Xxxxxx and Yenura Pte. Ltd. (the “Voting Agreements”).
(k) The Except to the extent the Stockholder Approval is required, the Common Stock (including, without limitation, the Existing Conversion Shares and the Existing Warrant Shares) (I) shall be designated for quotation or listed on the Principal Market (provided that the Company shall have three (3) Business Days following the Closing Date to list all of the Second Amended and Restated Conversion Shares and the Forbearance Warrant Shares) 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.
(l) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities.
(m) All rights of first refusal, participation, or similar rights that would entitle any Person to participate in the transactions contemplated hereby shall have expired or have been waived.
(n) The Company shall have paid to Xxxxxxx Xxxx & Xxxxx LLP the Investor Counsel Expense, and to Xxxxx, Xxxxxx & Xxxxxx LLP the First Lien Collateral Agent and Second Lien Collateral Agent counsel fees and expenses, and to the Bank of New York its annual administrative fee and its acceptance fee.
(o) The Notes shall be secured pursuant to the terms of the Amended Security Documents.
(p) Each Guarantor shall have executed and delivered to the Investor an Amended and Restated Guarantee.
(q) The Company shall have performed all of its obligations required to be performed under the Amended Security Documents.
(r) The Company and its Board of Directors shall have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation or the laws of the jurisdiction of its formation or otherwise which is or could become applicable to any Investor as a result of this Agreement, including without limitation, the Company’s issuance of securities and any Investor’s ownership of the securities.
(s) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.
Appears in 1 contract
