CONDITIONS TO THE BUYER'S OBLIGATION. The Buyer’s obligation to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver on or prior to the Closing Date of the following conditions: (a) the representations and warranties of the Seller in Sections 3.1 and 3.2 and the representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all respects as of the Effective Date and as of the Closing as though made at the Closing and all other representations and warranties of the Seller shall be true and correct in all respects as of the Effective Date and as of the Closing as though made at the Closing except for any inaccuracy that would not constitute a Material Adverse Effect; (b) the Seller and the Company shall have performed and complied with all of their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller shall have performed and complied with all of such covenants (as so written, including the term “material” and “Material”) in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing; (c) no Legal Proceeding shall be pending or threatened in writing against the Seller, the Company or any Consolidated Subsidiary wherein an unfavorable judgment, order, decree, stipulation or injunction could reasonably be expected to prevent consummation of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction; (d) the Seller and the Company shall have delivered to the Buyer a certificate (without qualification as to knowledge, materiality or otherwise) to the effect that each of the conditions specified above in Sections 8.1(a) through 8.1(c) is satisfied in all respects; (e) all applicable waiting periods (and any extensions thereof) under the HSR Act shall have expired or otherwise been terminated and the Florida Office of Insurance Regulation shall have approved the consummation of the transactions contemplated by this Agreement; (f) the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, of the Company and each of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization; (g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby; (h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby; (i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock; (j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and (k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Date.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Agl Resources Inc), Stock Purchase Agreement (Agl Resources Inc), Stock Purchase Agreement (Agl Resources Inc)
CONDITIONS TO THE BUYER'S OBLIGATION. TO MAKE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing buy Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that the Company may begin sales) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred:
(a) the representations and warranties The Company shall have executed each of the Seller in Sections 3.1 Transaction Documents and 3.2 delivered the same to the Buyer;
(b) The Company shall have issued to the Buyer the Commitment Shares and the Initial Purchase Shares and shall have removed the restrictive transfer legend from the certificate representing the Commitment Shares and the Initial Purchase Shares;
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market;
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of EXHIBIT A attached hereto;
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closingform attached hereto as EXHIBIT B;
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as EXHIBIT C which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date;
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, ordersolely for the purpose of effecting purchases of Purchase Shares hereunder, decree, stipulation or injunction could reasonably be expected to prevent consummation 7,333,333 shares of Common Stock including the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transactionInitial Purchase Shares;
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent;
(i) The Company shall have delivered to the Buyer a certificate (without qualification as to knowledge, materiality or otherwise) to evidencing the effect that each incorporation and good standing of the conditions specified above Company in Sections 8.1(athe State of Nevada issued by the Secretary of State of the State of Nevada as of a date within ten (10) through 8.1(c) is satisfied in all respectsBusiness Days of the Commencement Date;
(ej) The Company shall have delivered to the Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Nevada within ten (10) Business Days of the Commencement Date;
(k) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as EXHIBIT D;
(l) A registration statement covering the sale of all of the Commitment Shares and Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final and complete form of prospectus, dated and current as of the Commencement Date, to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares, and to be filed by the Company one Business Day after the Commencement Date. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws;
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred;
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the ClosingSecurities; and
(ko) Seller The Company shall have arranged for transfer provided the Buyer with the information requested by the Buyer in connection with its due diligence requests made prior to, or in connection with, the Commencement, in accordance with the terms of employees identified in Section 5.22(a)(ii4(g) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Datehereof.
Appears in 3 contracts
Samples: Common Stock Purchase Agreement (Aethlon Medical Inc), Common Stock Purchase Agreement (Aethlon Medical Inc), Common Stock Purchase Agreement (Aethlon Medical Inc)
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred;, provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer including the Registration Rights Agreement substantially in Sections 3.1 the form of Exhibit A hereto.
(b) The Company shall have issued to the Buyer the Additional Commitment Shares and 3.2 shall have removed the restrictive transfer legend from the certificate representing the Initial Commitment Shares. The Additional Commitment Shares shall be issued to the Buyer without any restrictive legend.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of Exhibit B attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect substantially in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as Exhibit C.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions substantially in the form attached hereto as Exhibit D which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, ordersolely for the purpose of effecting purchases of Purchase Shares hereunder, decree, stipulation or injunction could reasonably be expected to prevent consummation at least 2,475,000 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, substantially in the Seller form acceptable to the Buyer, shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of New Jersey issued by the Secretary of State of the State of New Jersey as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of New Jersey within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, substantially in the form attached hereto as Exhibit E.
(l) A registration statement covering the sale of all of the Commitment Shares and at least 2,475,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall have taken all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing DateSecurities.
Appears in 2 contracts
Samples: Common Stock Purchase Agreement (Ep Medsystems Inc), Common Stock Purchase Agreement (Ep Medsystems Inc)
CONDITIONS TO THE BUYER'S OBLIGATION. The Buyer’s obligation of the Buyers to consummate the transactions to be performed by it in connection with the Closing purchase Purchased Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Closing Date; provided that these conditions are for the Buyers' benefit only and may be waived by the Buyers at any time in their absolute discretion by providing the Company with prior written notice thereof:
(a) Trading in the representations and warranties Common Stock shall not have been suspended by the SEC or the Principal Market.
(b) The stockholders of the Seller in Sections 3.1 and 3.2 Company shall have approved the transactions contemplated by this Agreement, including without limitation, the sale of the Purchased Shares pursuant to Section 1 above, the issuance of the Ancillary Warrants, the Reverse Split and the Company Name Change.
(c) The Company shall have executed each of the Transaction Documents and delivered the same to the Buyers.
(d) Prior to the effectiveness of the Reverse Split, ninety five percent (95%) or more of the Company's convertible securities (excluding the Series D Preferred Stock), determined on the basis of the number of shares of Common Stock into which such convertible securities may be converted immediately prior to Closing, shall have been cancelled or converted to Common Stock in accordance with the terms thereof.
(e) Prior to the effectiveness of the Reverse Split, Gibralter shall have converted all 1,000,000 shares of the Series D Preferred Stock currently owned by it into 10,000,000 shares of Common Stock (equivalent to 1,000,000 shares upon the effectiveness of the Reverse Split).
(f) The Company shall have effected the Reverse Split and the Company Name Change by filing a Certificate of Amendment to the Certificate of Incorporation, in form and substance reasonably satisfactory to the Buyers.
(g) Each of the former shareholders of ecom shall have executed and delivered to the Company a written waiver of any rights such Person may have under that certain Agreement and Plan of Merger, dated as of December 21, 2000 (as amended, the "ecom Merger Agreement"), or otherwise, to receive additional shares of Common Stock upon the consummation of Company's sale of the Purchased Shares pursuant to Section 1 hereof.
(h) The sum of the number of shares of Common Stock outstanding and the number of shares of Common Stock issuable upon the conversion of all securities convertible into, or exercisable for, shares of Common Stock shall not exceed 54.5 million (ignoring the effect of the Reverse Split).
(i) The Company shall have entered into an agreement with Gibralter, which shall be for a term of not less than five (5) years, providing for the continued provision of services to Gibralter by the Company, such agreement to be at current market terms and in form and substance satisfactory to the Buyers in their absolute discretion (including, without limitation, as to allocation of overhead and costs). To the extent the parties cannot agree on an acceptable contract, the parties shall select an arbitrator to determine current market terms for said agreement.
(j) The Company shall have (i) terminated each employment agreement or consulting agreement listed under item (j) on Schedule 3(v), and (ii) entered into a new agreement with each Person employed or engaged under such agreements upon terms and conditions satisfactory to the Buyers.
(k) The Company shall have entered into a fee agreement with Xxxxxxxx, Xxxxxx & Company ("Xxxxxxxx"), in form and substance satisfactory to the Buyers in their absolute discretion, relating to services provided by Xxxxxxxx in connection with the transactions contemplated by this Agreement.
(l) [Intentionally omitted]
(m) The Buyers shall be satisfied, in their absolute discretion, with the results of their due diligence investigation of the Company and its Subsidiaries.
(n) There shall have been no material adverse change in the financial condition, results of operations or business prospects of the Company and its Subsidiaries, since May 31, 2002.
(o) The Buyers shall have received a legal opinion letter of the Company's legal counsel, dated as of the Closing Date, in the form of Schedule 7(o).
(p) The Company shall have executed and delivered to the Transfer Agent the Irrevocable Transfer Agent Instructions, and the same shall have been acknowledged in writing by the Company's Transfer Agent. The Company shall have executed and delivered to Hammer and WAG Holdings the Ancillary Warrants.
(q) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the Effective Date date when made and as of the Closing Date as though made at the Closing and all other that time (except for representations and warranties of the Seller shall be true and correct in all respects that speak as of the Effective Date and as of the Closing as though made at the Closing except for any inaccuracy that would not constitute a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Buyers shall have received a certificate, executed by the President of their covenants hereunder the Company, dated as of the Closing Date, to the foregoing effect, in all form and substance satisfactory to the Buyers.
(r) All permits and approvals from any governmental or regulatory body required for the lawful consummation of the transactions contemplated herein and the continued operation of the business of the Company and the Subsidiaries shall have been obtained.
(s) All consents, permits, waivers and approvals from parties to material respects through contracts or other agreements with the Company that may be required in connection with the performance by the Company of its obligations under this Agreement or the continuance of such contracts or other agreements with the Company without material modification after the consummation of the transactions contemplated herein shall have been obtained (with satisfactory written evidence thereof, in recordable form where necessary, to be furnished to the Buyers at the Closing).
(t) No action, except to the extent that such covenants are qualified by terms such as “material,” suit or “Material Adverse Effect,” in which case the Seller proceeding shall have performed and complied with all of such covenants (as so writtenbeen instituted before any court or governmental or regulatory body, including the term “material” and “Material”) in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;
(c) no Legal Proceeding shall be pending instituted or threatened in writing against by any governmental or regulatory body, to restrain, modify or prevent the Seller, the Company or any Consolidated Subsidiary wherein an unfavorable judgment, order, decree, stipulation or injunction could reasonably be expected to prevent consummation carrying out of the transactions contemplated by this Agreement or cause to seek damages or a discovery order in connection with such transactions, or that has or could reasonably be expected to have a materially adverse effect on the transactions contemplated by this Agreement to be rescinded following consummation assets, properties, business, operations or financial condition of the Company or any such transaction;Subsidiary.
(du) the Seller and the The Company shall have delivered to the Buyer Buyers a certificate (without qualification as to knowledge, materiality or otherwise) to evidencing the effect that each incorporation and good standing of the conditions specified above Company in Sections 8.1(athe State of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (10) through 8.1(c) is satisfied in all respects;Business Days of the Closing Date.
(ev) all applicable waiting periods (and any extensions thereof) under the HSR Act shall have expired or otherwise been terminated and the Florida Office of Insurance Regulation shall have approved the consummation of the transactions contemplated by this Agreement;
(f) the Seller The Company shall have delivered to the Buyer Buyers a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, certified copy of the Company and each Certificate of Incorporation as certified by the Secretary of State of the Consolidated Subsidiaries, certified by an appropriate authority State of Delaware within ten (10) Business Days of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;Closing Date.
(gw) the Seller The Company shall have delivered to the Buyer Buyers a secretary's certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and executed by the resolutions Secretary of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective dated as of the Closing Date, in form and substance satisfactory to the Buyers.
(x) The Company shall have obtained a policy of directors and officers liability insurance issued by an insurer acceptable to Buyer and having terms and coverage limits acceptable to the Buyers.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Goldstein William A), Stock Purchase Agreement (Market Central Inc)
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer including the Registration Rights Agreement substantially in Sections 3.1 and 3.2 the form of Exhibit A hereto.
(b) The Company shall have removed the restrictive legend from any Commitment Shares issued to the Buyer.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date in the form of Exhibit B attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as Exhibit C.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as Exhibit D which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, ordersolely for the purpose of effecting purchases of Purchase Shares hereunder, decree, stipulation or injunction could reasonably be expected to prevent consummation at least 2,400,000 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as Exhibit F.
(l) A registration statement covering the sale of all of the 600,000 Commitment Shares and at least 2,4000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing DateSecurities.
Appears in 2 contracts
Samples: Common Stock Purchase Agreement (Atlantic Technology Ventures Inc), Common Stock Purchase Agreement (Atlantic Technology Ventures Inc)
CONDITIONS TO THE BUYER'S OBLIGATION. TO MAKE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing buy Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that the Company may begin sales of Purchase Shares) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer;
(b) [Intentionally omitted.];
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in Sections 3.1 and 3.2 the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market, other than a general halt in trading in the Common Stock by the Principal Market under halt codes indicating pending or released material news, and the Securities shall be approved for listing upon the Principal Market;
(d) The Buyer shall have received the opinion of the Company’s legal counsel dated as of the Commencement Date in customary form and substance;
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the Effective Date date of this Agreement and as of the Closing Commencement Date as though made at the Closing and all other that time (except for representations and warranties that speak as of the Seller a specific date, which shall be true and correct in all material respects as of the Effective Date and as of the Closing as though made at the Closing except for any inaccuracy that would not constitute a Material Adverse Effect;
(bsuch specific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through with the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closingform attached hereto as Exhibit A;
(cf) no Legal Proceeding The Board of Directors of the Company or a duly authorized committee thereof shall have adopted resolutions substantially in the form attached hereto as Exhibit B which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date;
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, ordersolely for the purpose of effecting future purchases of Purchase Shares hereunder, decree, stipulation or injunction could reasonably be expected to prevent consummation 120,000,000 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transactionCommon Stock;
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Buyer and have been delivered to the Transfer Agent;
(i) The Company shall have delivered to the Buyer a certificate (without qualification as to knowledge, materiality or otherwise) to evidencing the effect that each incorporation and good standing of the conditions specified above Company in Sections 8.1(athe State of Nevada issued by the Secretary of State of the State of Nevada as of a date within ten (10) through 8.1(c) is satisfied in all respectsBusiness Days of the Commencement Date;
(ej) [Intentionally Omitted.];
(k) The Company shall have delivered to the Buyer a secretary’s certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as Exhibit C;
(l) The Shelf Registration Statement shall have been declared effective under the 1933 Act by the SEC and no stop order with respect thereto shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final and complete form of prospectus supplement, dated and current as of the Commencement Date, to be used in connection with any issuances of any Commitment Shares or any Purchase Shares to the Buyer, and to be filed by the Company two (2) Business Days after the Commencement Date pursuant to Rule 424(b).The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws;
(m) No Event of Default has occurred and is continuing, or any extensions thereofevent which, after notice and/or lapse of time, would become an Event of Default has occurred;
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any control share acquisition, business combination, stockholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Articles of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the ClosingSecurities; and
(ko) Seller The Company shall have arranged for transfer provided the Buyer with the information reasonably requested by the Buyer in connection with its due diligence requests made prior to, or in connection with, the Commencement, in accordance with the terms of employees identified in Section 5.22(a)(ii4(f) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Datehereof.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Innovation Pharmaceuticals Inc.)
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to satisfaction or waiver the satisfaction, on or prior to before the Closing Date Commencement Date, of each of the following conditions, provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer including the Registration Rights Agreement substantially in Sections 3.1 and 3.2 the form of Exhibit C hereto.
(b) The Company shall have removed any restrictive legend from the Commitment Shares
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date covering customary matters in customary form.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as Exhibit E.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions substantially in the form attached hereto as Exhibit F which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, ordersolely for the purpose of effecting purchases of Purchase Shares hereunder, decree, stipulation or injunction could reasonably be expected to prevent consummation at least 6,000,000 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in the Seller form of Exhibit G attached hereto, shall have been delivered to and acknowledged in writing by the Company and the Company's transfer agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as Exhibit H.
(l) A registration statement covering the sale of all of the Commitment Shares, the Warrant Shares and at least 6,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of Prospectus to be used by the Buyer in connection with any sales of any Commitment Shares, Warrant Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Securities and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Purchase Shares and the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) Securities and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing DatePurchase Shares.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Unigene Laboratories Inc)
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer.
(b) The Company shall have issued to the Buyer the Commitment Shares and shall have removed the restrictive transfer legend from the certificate representing the Commitment Shares and Signing Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in Sections 3.1 and 3.2 the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of EXHIBIT A attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as EXHIBIT B.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as EXHIBIT C which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, ordersolely for the purpose of effecting purchases of Purchase Shares hereunder, decree, stipulation or injunction could reasonably be expected to prevent consummation at least six million (6,000,000) shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Nevada issued by the Secretary of State of the State of Nevada as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of Nevada within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as EXHIBIT D.
(l) A registration statement covering the sale of all of the Commitment Shares, Signing Shares and at least six million (6,000,000) Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares, Signing Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares, Signing Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;, including, without limitation, the Company's issuance of the Securities and the Buyer's ownership of the Securities.
(fo) the Seller The Company shall have delivered to provided the Buyer a certificate of organizationwith the information requested by the Buyer in connection with its due diligence requests made prior to, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, of the Company and each of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entitiesconnection with, the resolutions Commencement, in accordance with the terms of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(iSection 4(g) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Datehereof.
Appears in 1 contract
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer including the Registration Rights Agreement substantially in Sections 3.1 the form of Exhibit A hereto.
(b) The Company shall have issued to the Buyer the Commitment Shares and 3.2 shall have removed the restrictive transfer legend from the Commitment Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date in the form of Exhibit B attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though though, made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as Exhibit C.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as Exhibit D which shall be pending or threatened in writing against full force and effect without any amendment supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, orderand solely for the purpose of effecting purchases of Purchase Shares hereunder, decree, stipulation or injunction could reasonably be expected to prevent consummation at least 5,000,000 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as Exhibit E.
(l) A registration statement covering the side of all of the Commitment Shares and at least 5,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing DateSecurities.
Appears in 1 contract
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer including the Registration Rights Agreement substantially in Sections 3.1 the form of EXHIBIT A hereto.
(b) The Company shall have issued to the Buyer the Initial Commitment Shares and 3.2 shall have removed the restrictive transfer legend from the certificate representing the Initial Commitment Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of EXHIBIT B attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as EXHIBIT C.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as EXHIBIT D which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, order(A) solely for the purpose of effecting purchases of Purchase Shares hereunder, decreeat least 6,376,000 shares of Common Stock and (B) as Additional Commitment Shares in accordance with Section 4(f) hereof, stipulation or injunction could reasonably be expected to prevent consummation 316,456 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as EXHIBIT E.
(l) A registration statement covering the sale of all of the Commitment Shares and at least 6,376,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event that, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing DateSecurities.
Appears in 1 contract
CONDITIONS TO THE BUYER'S OBLIGATION. The Buyer’s obligation to consummate the transactions Transaction is subject to satisfaction (or waiver by the Buyer) of the following conditions: (i) the representations and warranties made by the Seller in this Agreement shall be true and correct at and as of the Closing, with the same force and effect as if made at and as of the Closing; (ii) the Seller shall have complied with and performed in all material respects (without duplication of any materiality qualifier contained therein) all of the covenants required to be performed by it in connection with the Closing is subject to satisfaction or waiver on at or prior to the Closing Date of the following conditions:
(a) the representations and warranties of the Seller in Sections 3.1 and 3.2 and the representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all respects as of the Effective Date and as of the Closing as though made at the Closing and all other representations and warranties of the Seller shall be true and correct in all respects as of the Effective Date and as of the Closing as though made at the Closing except for any inaccuracy that would not constitute a Material Adverse Effect;
(b) the Seller and the Company shall have performed and complied with all of their covenants hereunder in all material respects through the Closing, except pursuant to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller shall have performed and complied with all of such covenants (as so written, including the term “material” and “Material”) in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;
(c) no Legal Proceeding shall be pending or threatened in writing against the Seller, the Company or any Consolidated Subsidiary wherein an unfavorable judgment, order, decree, stipulation or injunction could reasonably be expected to prevent consummation of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;
(d) the Seller and the Company shall have delivered to the Buyer a certificate (without qualification as to knowledge, materiality or otherwise) to the effect that each of the conditions specified above in Sections 8.1(a) through 8.1(c) is satisfied in all respects;
(e) all applicable waiting periods (and any extensions thereof) under the HSR Act shall have expired or otherwise been terminated and the Florida Office of Insurance Regulation shall have approved the consummation of the transactions contemplated by this Agreement;
; (f) the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, of the Company and each of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(giii) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors other authorized officer of the Seller approving certifying that the conditions set forth in clauses (i) and (ii) above have been satisfied; and (iv) no Order shall been entered, issued, made, or rendered, which Order remains in effect and restrains, enjoins, makes illegal, or otherwise prohibits consummation of all or any part of the Transaction. Conditions to the Seller’s Obligation. The Seller’s obligation to consummate the Transaction is subject to satisfaction (or waiver by the Seller) of the following conditions: (i) the representations and warranties made by the Buyer in this Agreement shall be true and correct at and as of the transactions contemplated hereby;
Closing, with the same force and effect as if made at and as of the Closing; (hii) the Seller Buyer shall have complied with and performed in all material respects (without duplication of any materiality qualifier contained therein) all of the covenants required to be performed by it at or prior to the Closing pursuant to this Agreement; (iii) the Buyer shall have delivered to the Buyer Seller a certificate of a secretary or assistant secretary other authorized officer of the Company and each of Buyer certifying that the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
conditions set forth in clauses (i) the Seller shall and (ii) above have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closingbeen satisfied; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Date.
Appears in 1 contract
Samples: Unit Purchase Agreement (Eos Energy Enterprises, Inc.)
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer including the Registration Rights Agreement substantially in Sections 3.1 and 3.2 the form of Exhibit A hereto.
(b) The Company shall have issued to the Buyer the Commitment Shares and the Signing Shares and shall have removed the restrictive transfer legend from the certificates representing the Commitment Shares and Signing Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of Exhibit B attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as Exhibit C.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as Exhibit D which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, ordersolely for the purpose of effecting purchases of Purchase Shares hereunder, decree, stipulation or injunction could reasonably be expected to prevent consummation at least 20,000,000 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Nevada issued by the Secretary of State of the State of Nevada as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of Nevada within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as Exhibit E.
(l) A registration statement covering the sale of all of the Commitment Shares, Signing Shares and at least 20,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares, Signing Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares, Signing Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing DateSecurities.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Majestic Companies LTD)
CONDITIONS TO THE BUYER'S OBLIGATION. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing Acquisition is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditions:
(a) the representations and warranties All waivers, consents, authorizations, orders, approvals or expiration of waiting periods required under any Law or Contract to be obtained by any of the Seller parties hereof in Sections 3.1 and 3.2 and order to consummate the Acquisition shall have been obtained, except where the failure to have obtained any waiver, consent, authorization, order or approval would not have a Company Material Adverse Effect or a Buyer Material Adverse Effect.
(b) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) set forth herein shall be true and correct in all respects as of the Effective Date date hereof, and as of the Closing time the Acquisition is consummated, other than, in all such cases, such failures to be true and/or correct as though made at would not in the Closing and all other aggregate reasonably be expected to have a Company Material Adverse Effect; PROVIDED, HOWEVER, that if any of the representations and warranties is already qualified in any respect by materiality or as to a Company Material Adverse Effect, for purposes of the Seller shall this Section 11(b) such materiality or Company Material Adverse Effect qualification will be true and correct in all respects ignored (but subject to the overall standard as of the Effective Date and as of the Closing as though made at the Closing except for any inaccuracy that would not constitute a to Material Adverse Effect;
(b) the Seller Effect set forth immediately prior to this proviso), and the Company shall have performed and complied with all of their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller shall have performed and complied with all of such covenants (as so written, including the term “material” and “Material”) in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;agreements set forth herein to be performed by it.
(c) no Legal Proceeding shall be pending No injunction, restraining order or threatened in writing against other order of any federal or state court which prevents the Seller, the Company or any Consolidated Subsidiary wherein an unfavorable judgment, order, decree, stipulation or injunction could reasonably be expected to prevent consummation of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to Acquisition shall be rescinded following consummation of any such transaction;in effect.
(d) the Seller and the Company No statute, rule or regulation shall have delivered to been enacted by any state or governmental agency that would prevent the Buyer a certificate (without qualification as to knowledge, materiality or otherwise) to the effect that each consummation of the conditions specified above in Sections 8.1(a) through 8.1(c) is satisfied in all respects;Acquisition.
(e) all applicable waiting periods (and any extensions thereof) under Except as set forth in the HSR Act Disclosure Schedule, no Company Material Adverse Effect shall have expired or otherwise been terminated occurred between the date hereof and the Florida Office of Insurance Regulation shall have approved the consummation of the transactions contemplated by this Agreement;Acquisition other than any developments that generally affect the industry in which the Company operates.
(f) the Seller The Stockholder Approval shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, of the Company and each of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Datebeen obtained.
Appears in 1 contract
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer including the Registration Rights Agreement substantially in Sections 3.1 the form of Exhibit A hereto.
(b) The Company shall have issued to the Buyer the Initial Commitment Shares and 3.2 shall have removed any restrictive transfer legend from the Initial Commitment Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of Exhibit B attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as Exhibit C.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as Exhibit D which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, order(A) solely for the purpose of effecting purchases of Purchase Shares hereunder, decreeat least 10,000,000 shares of Common Stock and (B) as Additional Commitment Shares in accordance with Section 4(f) hereof, stipulation or injunction could reasonably be expected to prevent consummation 300,000 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Nevada issued by the Secretary of State of the State of Nevada as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of Nevada within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as Exhibit E.
(l) A registration statement covering the sale of all of the Commitment Shares and at least 10,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing DateSecurities.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Purchasepro Com Inc)
CONDITIONS TO THE BUYER'S OBLIGATION. The Buyer’s obligation to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver on or prior to the Closing Date of the following conditionsconditions and deliveries:
(a) the representations and warranties of the Seller set forth in Sections 3.1 Section 2 and 3.2 and the representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) Section 3 above shall be true true, complete and correct in all respects as of the Effective Date date of this Agreement, and must be true, complete and correct at and as of the Closing Date as though if made at the Closing and all other representations and warranties of the Seller shall be true and correct in all respects as of the Effective Date on and as of the Closing as though made at the Closing except for any inaccuracy that would not constitute a Material Adverse EffectDate;
(b) the Seller Sellers and the Company shall have performed and complied with all of their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller shall have performed and complied with all of such covenants (as so written, including the term “material” and “Material”) in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;
(c) no Legal Proceeding there shall not be pending or threatened in writing against the Sellerany injunction, the Company or any Consolidated Subsidiary wherein an unfavorable judgment, order, decree, stipulation ruling, or injunction could reasonably be expected to prevent charge in effect preventing consummation of any of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transactionAgreement;
(d) the Seller and the Company shall have delivered to the Buyer a certificate (without qualification as to knowledge, materiality or otherwise) to the effect that each of the conditions specified above in Sections 8.1(a) through 8.1(cSection 7.1(a)-(c) is satisfied in all respects;
(e) all applicable waiting periods (and any extensions thereof) under the HSR Act Company shall have expired or otherwise been terminated received all other authorizations, consents, and the Florida Office of Insurance Regulation shall have approved the consummation of the transactions contemplated by this Agreementapprovals, including those set forth on Schedule 3.6;
(f) the Seller shall have delivered to the Buyer a certificate of organizationincorporation, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, existence of the Company and each of the Consolidated SubsidiariesCompany, certified by an appropriate authority of the applicable governmental authority Government Body issuing such certificate in the jurisdiction of each such entity’s creation, formation, or organizationorganization and in any other jurisdiction where such entity is qualified to do business;
(g) the Seller shall have FIRPTA certificates required to be delivered by the Sellers pursuant to the Buyer Section 2.5;
(h) a certificate of a secretary or assistant secretary of such Seller the Company certifying to such Sellerthe Company’s organizational documents (documents, including any operating agreements) its bylaws, and the resolutions of the board of directors of the Seller Company approving this Agreement and the transactions contemplated hereby;
(hi) the Buyer shall have received from Xxxxxx, LLP, a legal opinion, addressed to the Buyer and dated the Closing Date, substantially in the form of Exhibit A;
(j) since the date of this Agreement, there must have been no event, series of events, or the lack of occurrence thereof which has had or could reasonably be expected to have a Material Adverse Change;
(k) all actions to be taken by the Company or the Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer;
(l) the Company and the persons listed on Schedule 5.8 shall have executed and delivered a Non-Competition, Non-Solicitation and Employment Agreement, substantially in the form attached hereto as Exhibit B;
(m) the Company shall have notified each Company optionholder of its intent to terminate all Company Stock Options prior to Closing;
(n) the Company shall have repurchased all of the outstanding capital stock of the Company owned by the Persons listed on Schedule 7.1(n), and the Buyer shall have received a copy of all documents executed in connection with such repurchase and the Company shall have received the original stock certificates representing the repurchased shares of Common Stock and canceled such certificates;
(o) Releases of all Liens listed on Schedule 7.1(o), including, without limitation, UCC-3 termination statements;
(p) that certain Share Purchase and Security Agreement dated November 29, 2001, among the M. Xxxxx Xxxxxxxx, Xxxxxx Xxxxxxxxxx, and Xxxxxxx Xxxxxxxxx shall be terminated and shall have no further force or effect; and
(q) each Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock their respective stock certificates duly endorsed in blank or accompanied by stock powers duly executed in blank, and all other proper forms for transfer, with all required stock transfer of the Outstanding Stock;
(j) the Seller shall have delivered stamps affixed or provided. The Buyer may waive any condition specified in this Section 7.1 if it executes a writing so stating at or prior to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Date.
Appears in 1 contract
CONDITIONS TO THE BUYER'S OBLIGATION. The Buyer’s obligation to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver on or prior to the Closing Date of the following conditions:
(ai) this Agreement shall have received the Requisite Stockholder Approval;
(ii) the representations and warranties of the Seller set forth in Sections 3.1 and 3.2 and the representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) §3 above shall be true and correct in all material respects as of the Effective Date at and as of the Closing as though made at the Closing and all other representations and warranties of the Seller shall be true and correct in all respects as of the Effective Date and as of the Closing as though made at the Closing except for any inaccuracy that would not constitute a Material Adverse EffectDate;
(biii) the Seller and the Company Triant Holdings shall have performed and complied with all of their its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller shall have performed and complied with all of such covenants (as so written, including the term “material” and “Material”) in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;
(civ) Triant Holdings and its Subsidiaries shall have procured all of the third-party consents specified in §5(b) above;
(v) no Legal Proceeding action, suit, or proceeding shall be pending or threatened in writing against the Sellerbefore (or that could come before) any court or quasi-judicial or administrative agency of any federal, the Company provincial, local, or foreign jurisdiction or before (or that could come before) any Consolidated Subsidiary arbitrator wherein an unfavorable injunction, judgment, order, decree, stipulation ruling, or injunction could reasonably be expected to charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, (C) adversely affect the right of the Buyer to own the Acquired Assets, to operate the former business of Triant Holdings, and to control Triant Holdings’ Subsidiaries, or (D) adversely affect the right of any of Triant Holdings’ Subsidiaries to own its assets and to operate its business (and no such transactioninjunction, judgment, order, decree, ruling, or charge shall be in effect);
(dvi) Triant Korea shall have secured the Seller voluntary termination of all of its employees and consultants, effective as of the Company Closing, and shall have obtained and delivered a copy to the Buyer of a full general release of all known and unknown claims, naming the Buyer as a third party beneficiary, in form and substance satisfactory to the Buyer, from each of its employees and consultants existing as of the date hereof. The Escrow Agent shall make statutory payments with respect to those employees or consultants of Triant Holdings and its Subsidiaries who have not provided such releases, upon their termination by Triant Holdings or its Subsidiaries prior to or after the Closing (to the extent the Buyer has not been given reasonable evidence that such amounts have been paid as of the Closing).
(vii) No circumstances shall have arisen that would give rise to a right by any counterparty, receiver, trustee or other Person to terminate any contracts among the Acquired Assets.
(viii) Triant Holdings shall have delivered to the Buyer a certificate (without qualification as to knowledge, materiality or otherwise) to the effect that each of the conditions specified above in Sections 8.1(a) through 8.1(cthis §6(a) is satisfied in all respects;
(eix) Triant Holdings, its Subsidiaries, and the Buyer shall have received all authorizations, consents, and approvals of governments and governmental agencies referred to in §3(c) and §4(c) above;
(x) the Buyer shall have received from counsel to Triant Holdings and the Seller an opinion in form and substance customary for such transaction and reasonably acceptable to the Buyer, addressed to the Buyer and dated as of the Closing Date;
(xi) all applicable waiting periods (and any extensions thereof) under the HSR Act shall have expired or otherwise been terminated and the Florida Office of Insurance Regulation shall have approved the actions to be taken by Triant Holdings in connection with consummation of the transactions contemplated by this Agreementhereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall be satisfactory in form and substance to the Buyer;
(fxii) the specific Key Employees who are employees of the Seller and who have been designated by the Buyer, in its sole discretion, in the Letter Agreement shall have entered into consulting agreements with the Buyer on terms reasonably satisfactory to the Buyer (which shall include explicit acknowledgement from the individual that the Buyer and its Subsidiaries are not responsible for past employment obligations or service credit relating to his or her employment by Triant Holdings or any of its Subsidiaries and shall also include explicit termination compensation arrangements), and such agreements shall be in full force and effect as of the Closing, and at least 14 of the employees of Triant Korea among the Key Employees shall have entered into employment agreements with PDF Korea on terms reasonably satisfactory to the Buyer, and such agreements shall be in full force and effect as of the Closing;
(xiii) Triant Holdings shall have delivered to the Buyer copies of the articles and bylaws of each of Triant Holdings and Triant Holdings’ Subsidiaries certified on or soon before the Closing Date by the Registrar under the Business Corporations Act (British Columbia) (or comparable officer) of the jurisdiction of each such Person’s incorporation (or formation);
(xiv) Triant Holdings shall have delivered to the Buyer copies of the certificate of good standing of each of Triant Holdings and Triant Holdings’ Subsidiaries issued on or soon before the Closing Date by the Registrar under the Business Corporations Act (British Columbia) (or comparable officer) of the jurisdiction of each such Person’s organization;
(xv) Triant Holdings shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, of the Company and each of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or an assistant secretary of each of Triant Holdings and Triant Holdings’ Subsidiaries, dated the Closing Date, in form and substance reasonably satisfactory to the Buyer, as to: (i) no amendments to the articles or bylaws of such Seller certifying to such Seller’s organizational documents entity since the date specified in clause (including any operating agreementsxxii) and above; (ii) the resolutions of the board of directors (or other authorizing body) (or a duly authorized committee thereof) of such entity authorizing the Seller approving execution, delivery, and performance of this Agreement and the transactions contemplated hereby; and (iii) incumbency and signatures of the officers of such entity executing this Agreement or any other agreement contemplated by this Agreement;
(hxvi) KPMG LLP shall have given its consent as necessary to permit the Buyer to file its Current Report on Form 8-K with the U.S. Securities and Exchange Commission that includes the applicable financial statements of Triant Holdings and its Subsidiaries (costs to obtain this consent shall be borne by the Buyer);
(xvii) HSBC Bank Canada’s lien shall have been released;
(xviii) the Seller shall have delivered renewed its Fiorano Licenses on terms substantially equivalent to their current terms and approved in writing by the Buyer, shall have duly assigned such renewed contract to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing DateDate and shall have provided any required third party consent necessary for such assignment;
(xix) The Buyer shall have received evidence reasonably satisfactory to them that all Tax returns of Triant Holdings and each of the Seller required to be filed under applicable laws has been filed prior to the Closing and all Taxes required to be paid have been paid;
(xx) The Buyer shall have received evidence reasonably satisfactory to them that notice of termination has been sent to the appropriate counterparties with respect to all distributor agreements of Triant Holdings and the Seller related to the Business;
(xxi) The Buyers shall have met with the appropriate party at Hynix during the period between the date hereof and Closing to discuss the future relationship between the Buyer and Hynix, and the Buyer shall have received reason, as determined by the Buyer at the Buyer’s sole discretion, to feel comfortable that the relationship between the Buyer and Hynix would successfully continue; and
(xxii) The Buyer may waive any condition specified in this §6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion BY providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer including the Registration Rights Agreement substantially in Sections 3.1 the form of Exhibit A hereto.
(b) The Company shall have issued to the Buyer the Initial Commitment Shares and 3.2 shall have removed the restrictive transfer legend from the certificate representing the Initial Commitment Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing or trading, as the case may be, upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of Exhibit B attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as Exhibit C.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as Exhibit D1 and D-2 which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, order(A) solely for the purpose of effecting purchases of Purchase Shares hereunder, decreeat least 8,000,000 shares of Common Stock and (B) as Additional Commitment Shares in accordance with Section 4(f) hereof, stipulation or injunction could reasonably be expected to prevent consummation 442,152 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Nevada issued by the Secretary of State of the State of Nevada as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of Nevada within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as Exhibit E.
(1) A registration statement covering the sale of all of the Commitment Shares and at least 8,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time. would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing DateSecurities.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Global Seafood Technologies Inc)
CONDITIONS TO THE BUYER'S OBLIGATION. TO MAKE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing buy Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that the Company may begin sales) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer;
(b) The Company shall have issued to the Buyer the Initial Commitment Shares and shall have removed the restrictive transfer legend from the certificate representing the Initial Commitment Shares;
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in Sections 3.1 and 3.2 the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market up to the Exchange Cap;
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of EXHIBIT A attached hereto;
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closingform attached hereto as EXHIBIT B;
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as EXHIBIT C which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date;
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, order(A) solely for the purpose of effecting purchases of Purchase Shares hereunder, decree1,500,000 shares of Common Stock and (B) as Additional Commitment Shares in accordance with Section 4(e) hereof, stipulation or injunction could reasonably be expected to prevent consummation 42,187 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transactionCommon Stock;
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent;
(i) The Company shall have delivered to the Buyer a certificate (without qualification as to knowledge, materiality or otherwise) to evidencing the effect that each incorporation and good standing of the conditions specified above Company in Sections 8.1(athe State of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (10) through 8.1(c) is satisfied in all respectsBusiness Days of the Commencement Date;
(ej) The Company shall have delivered to the Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) Business Days of the Commencement Date;
(k) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as EXHIBIT D;
(l) A registration statement covering the sale of all of the Commitment Shares and Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final and complete form of prospectus, dated and current as of the Commencement Date, to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares, and to be filed by the Company one Business Day after the Commencement Date. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws;
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred;
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the ClosingSecurities; and
(ko) Seller The Company shall have arranged for transfer provided the Buyer with the information requested by the Buyer in connection with its due diligence requests made prior to, or in connection with, the Commencement, in accordance with the terms of employees identified in Section 5.22(a)(ii4(g) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Datehereof.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Competitive Technologies Inc)
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer including the Registration Rights Agreement substantially in Sections 3.1 the form of Exhibit A hereto.
(b) The Company shall have issued to the Buyer the Commitment Shares and 3.2 shall have removed the restrictive transfer legend from the Commitment Shares and the Expense Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date in the form of Exhibit B attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as Exhibit C.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as Exhibit D which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, orderand solely for the purpose of effecting purchases of Purchase Shares hereunder, decree, stipulation or injunction could reasonably be expected to prevent consummation at least 6,000,000 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Nevada issued by the Secretary of State of the State of Nevada as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of Nevada within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as Exhibit E.
(l) A registration statement covering the sale of all of the Commitment Shares, the Expense Shares and at least 6,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares, Expense Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing DateSecurities.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Bioprogress Technology International Inc)
CONDITIONS TO THE BUYER'S OBLIGATION. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing Acquisition is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditions:
(a) the representations and warranties All waivers, consents, authorizations, orders, approvals or expiration of waiting periods required under any Law or Contract to be obtained by any of the Seller parties hereof in Sections 3.1 and 3.2 and order to consummate the Acquisition shall have been obtained, except where the failure to have obtained any waiver, consent, authorization, order or approval would not have a Company Material Adverse Effect or a Buyer Material Adverse Effect.
(b) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) set forth herein shall be true and correct in all respects as of the Effective Date date hereof, and as of the Closing time the Acquisition is consummated, other than, in all such cases, such failures to be true and/or correct as though made at would not in the Closing and all other aggregate reasonably be expected to have a Company Material Adverse Effect; provided, however, that if any of the representations and warranties is already qualified in any respect by materiality or as to a Company Material Adverse Effect, for purposes of the Seller shall this Section 11(b) such materiality or Company Material Adverse Effect qualification will be true and correct in all respects ignored (but subject to the overall standard as of the Effective Date and as of the Closing as though made at the Closing except for any inaccuracy that would not constitute a to Material Adverse Effect;
(b) the Seller Effect set forth immediately prior to this proviso), and the Company shall have performed and complied with all of their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller shall have performed and complied with all of such covenants (as so written, including the term “material” and “Material”) in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;agreements set forth herein to be performed by it.
(c) no Legal Proceeding shall be pending No injunction, restraining order or threatened in writing against other order of any federal or state court which prevents the Seller, the Company or any Consolidated Subsidiary wherein an unfavorable judgment, order, decree, stipulation or injunction could reasonably be expected to prevent consummation of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to Acquisition shall be rescinded following consummation of any such transaction;in effect.
(d) the Seller and the Company No statute, rule or regulation shall have delivered to been enacted by any state or governmental agency that would prevent the Buyer a certificate (without qualification as to knowledge, materiality or otherwise) to the effect that each consummation of the conditions specified above in Sections 8.1(a) through 8.1(c) is satisfied in all respects;Acquisition.
(e) all applicable waiting periods (and any extensions thereof) under Except as set forth in the HSR Act Disclosure Schedule, no Company Material Adverse Effect shall have expired or otherwise been terminated occurred between the date hereof and the Florida Office of Insurance Regulation shall have approved the consummation of the transactions contemplated by this Agreement;Acquisition other than any developments that generally affect the industry in which the Company operates.
(f) the Seller The Stockholder Approval shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, of the Company and each of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Datebeen obtained.
Appears in 1 contract
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer.
(b) The Company shall have issued to the Buyer the Commitment Shares and shall have removed the restrictive transfer legend from the certificate representing the Commitment Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in Sections 3.1 and 3.2 the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of Exhibit A attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as Exhibit B.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as Exhibit C which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, ordersolely for the purpose of effecting purchases of Purchase Shares hereunder, decree, stipulation or injunction could reasonably be expected to prevent consummation at least 10,000,000 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Nevada issued by the Secretary of State of the State of Nevada as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of Nevada within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as Exhibit D.
(l) A registration statement covering the sale of all of the Commitment Shares and at least 10,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;, including, without limitation, the Company's issuance of the Securities and the Buyer's ownership of the Securities.
(fo) the Seller The Company shall have delivered to provided the Buyer a certificate of organizationwith the information requested by the Buyer in connection with its due diligence requests made prior to, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, of the Company and each of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entitiesconnection with, the resolutions Commencement, in accordance with the terms of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(iSection 4(g) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Datehereof.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Samaritan Pharmaceuticals Inc)
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer.
(b) The Company shall have removed the restrictive transfer legend from the certificate representing the Initial Commitment Shares and Signing Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in Sections 3.1 and 3.2 the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of EXHIBIT B attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as EXHIBIT C.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as EXHIBIT D which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, ordersolely for the purpose of effecting purchases of Purchase Shares hereunder, decreeat least 15,000,000 shares of Common Stock and (B) as Additional Commitment Shares in accordance with Section 4(f) hereof, stipulation or injunction could reasonably be expected to prevent consummation 1,076,233 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as EXHIBIT E.
(l) A registration statement covering the sale of all of the Commitment Shares, Signing Shares and at least 15,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares, Signing Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares, Signing Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;, including, without limitation, the Company's issuance of the Securities and the Buyer's ownership of the Securities.
(fo) the Seller The Company shall have delivered to provided the Buyer a certificate of organizationwith the information requested by the Buyer in connection with its due diligence requests made prior to, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, of the Company and each of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entitiesconnection with, the resolutions Commencement, in accordance with the terms of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(iSection 4(g) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Datehereof.
Appears in 1 contract
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to satisfaction the satisfaction, on or waiver before the Commencement Date, of each of the following conditions, provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed each of the Transaction Documents and delivered the same to the Buyer including the Registration Rights Agreement substantially in the form of EXHIBIT C hereto.
(b) The Company shall have issued to the Buyer 200,000 shares of Common Stock (the "Commitment Shares"). The number of Commitment Shares shall be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction occurring on or prior to the Closing Date Commencement Date. The Commitment Shares shall be issued to the Buyer without any restrictive legend and shall be issued by the Company's transfer agent via The DTC Fast Automated Securities Transfer Program, by crediting the appropriate number of shares of Common Stock to which the Buyer shall be entitled to the Buyer's or its designee's balance account with The DTC through The DTC DWAC system.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the following conditions:Company's legal counsel dated as of the Commencement Date in the form of EXHIBIT D attached hereto.
(ae) the representations and warranties of the Seller in Sections 3.1 and 3.2 and the The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as EXHIBIT E.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as EXHIBIT F which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, ordersolely for the purpose of effecting purchases of Purchase Shares hereunder, decree, stipulation or injunction could reasonably be expected to prevent consummation at least 2,500,000 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in the Seller form of EXHIBIT G attached hereto, shall have been delivered to and acknowledged in writing by the Company and the Company's transfer agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Nevada issued by the Secretary of State of the State of Nevada as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of the Company within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as EXHIBIT H.
(l) A registration statement covering the sale of all of the Commitment Shares and at least 2,500,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of Prospectus to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing DateSecurities.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (U S Plastic Lumber Corp)
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer.
(b) The Company shall have issued to the Buyer the Initial Commitment Shares, Initial Purchase Shares, Warrants and shall have removed the restrictive transfer legend from the certificate representing the Initial Commitment Shares, Initial Purchase Shares and Signing Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in Sections 3.1 and 3.2 the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of EXHIBIT A attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as EXHIBIT B.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as EXHIBIT C which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, order(A) solely for the purpose of effecting purchases of Purchase Shares hereunder, decreeat least 8,000,000 shares of Common Stock, stipulation or injunction could reasonably be expected to prevent consummation (B) as Additional Commitment Shares in accordance with Section 4(f) hereof, 139,535 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock and (C) 568,181 as Warrant Shares.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Nevada issued by the Secretary of State of the State of Nevada as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of Nevada within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as EXHIBIT D.
(l) A registration statement covering the sale of all of the Commitment Shares, Warrant Shares Signing Shares and at least 8,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares, Warrant Shares, Signing Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares, Warrant Shares, Signing Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;, including, without limitation, the Company's issuance of the Securities and the Buyer's ownership of the Securities.
(fo) the Seller The Company shall have delivered to provided the Buyer a certificate of organizationwith the information requested by the Buyer in connection with its due diligence requests made prior to, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, of the Company and each of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entitiesconnection with, the resolutions Commencement, in accordance with the terms of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(iSection 4(g) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Datehereof.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Aethlon Medical Inc)
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer.
(b) The Company shall have issued to the Buyer the Initial Commitment Shares, Warrants and Initial Purchase Shares and shall have removed the restrictive transfer legend from the certificate representing the Initial Commitment Shares, Initial Purchase Shares and Signing Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in Sections 3.1 and 3.2 the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of EXHIBIT A attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as EXHIBIT B.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as EXHIBIT C which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, order(A) solely for the purpose of effecting purchases of Purchase Shares hereunder, decreeat least 6,200,000 shares of Common Stock, stipulation or injunction could reasonably be expected to prevent consummation (B) as Additional Commitment Shares in accordance with Section 4(f) hereof, 255,000 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock and (C) 2,500,000 Warrant Shares..
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of California issued by the Secretary of State of the State of California as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of California within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as EXHIBIT D.
(l) A registration statement covering the sale of all of the Commitment Shares, Signing Shares, Warrant Shares and at least 6,200,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares, Signing Shares, Warrant Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares, Signing Shares, Warrant Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;, including, without limitation, the Company's issuance of the Securities and the Buyer's ownership of the Securities.
(fo) the Seller The Company shall have delivered to provided the Buyer a certificate of organizationwith the information requested by the Buyer in connection with its due diligence requests made prior to, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, of the Company and each of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entitiesconnection with, the resolutions Commencement, in accordance with the terms of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(iSection 4(g) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Datehereof.
Appears in 1 contract
CONDITIONS TO THE BUYER'S OBLIGATION. The Buyer’s obligation to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver on or prior to the Closing Date of the following conditions:
(ai) the representations and warranties set forth in Section 4 above shall be true and correct in all material respects at and as of the Seller in Sections 3.1 and 3.2 and Closing Date, except to the extent that such representations and warranties of are qualified by terms such as “material” and the Company representation contained in Sections 5.1, 5.2, 5.7(a)(i)-(ivSection 4(b)(i), 5.15(b) in which case such representations and 5.15(e) warranties shall be true and correct in all respects as of the Effective Date at and as of the Closing as though made at the Closing and all other representations and warranties of the Seller shall be true and correct in all respects as of the Effective Date and as of the Closing as though made at the Closing except for any inaccuracy that would not constitute a Material Adverse EffectDate;
(bii) the Seller and the Company Sellers shall have performed and complied with all of their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” ”, in which case the Seller Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” and “Material”) in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;
(c) no Legal Proceeding shall be pending or threatened in writing against the Seller, the Company or any Consolidated Subsidiary wherein an unfavorable judgment, order, decree, stipulation or injunction could reasonably be expected to prevent consummation of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;
(diii) the Seller and the Company Sellers shall have delivered to the Buyer a certificate (without qualification as to knowledgecertificate, materiality or otherwise) to dated the effect that each of Closing Date, certifying the conditions specified above in Sections 8.1(asubsections (i) through 8.1(cand (ii) is satisfied in all respectsabove;
(eiv) all applicable waiting periods (and there shall not be any extensions thereof) under the HSR Act shall have expired injunction, judgment, order, decree, ruling, or otherwise been terminated and the Florida Office charge in effect preventing consummation of Insurance Regulation shall have approved the consummation any of the transactions contemplated by this Agreement;
(fv) the Seller Parties shall have delivered entered into a general xxxx of sale and assignment, substantially in the form of Exhibit E hereto (the “Xxxx of Sale”), with respect to the Buyer a certificate of organizationPurchased Assets, or its equivalentexecuted by the Sellers, which shall be in full force and certificate(s) of good standing and/or existence, or its equivalent, of the Company and each of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organizationeffect;
(gvi) the Seller Parties shall have delivered entered into an assignment and assumption agreement, substantially in the form of Exhibit F hereto (the “Assumption Agreement”), pursuant to which the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) shall be assigned and shall assume the resolutions of Assumed Liabilities from the board of directors of Sellers, executed by the Seller approving this Agreement Sellers, which shall be in full force and the transactions contemplated herebyeffect;
(hvii) the Seller Bankruptcy Court shall have delivered entered the Sale Order, and such order shall not have been appealed, rescinded, reversed, modified or stayed;
(viii) the Bankruptcy Court shall have entered one or more orders finding that Buyer has demonstrated adequate assurance of future performance as required by Section 365 with respect to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s Purchased Leases and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to Bankruptcy Court shall have entered the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and therebyExpedited Procedures Order;
(ix) the Bankruptcy Court shall have entered an order in form and substance satisfactory to Buyer providing that (i) the Seller Anti-Assignment Provisions (as defined in the Expedited Procedures Motion) are unenforceable; and (ii) that Buyer shall have delivered be entitled to exercise any and all unexpired renewal and extension options, rights of first refusal, non-disturbance rights and protections and similar provisions. The Buyer may waive any condition specified in this Section 7(a) if it executes a writing so stating at or prior to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Whitehall Jewelers Holdings, Inc.)
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer including the Registration Rights Agreement substantially in Sections 3.1 the form of EXHIBIT A hereto.
(b) The Company shall have issued to the Buyer the Initial Commitment Shares and 3.2 shall have removed the restrictive transfer legend from the certificate representing the Initial Commitment Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and 10,000,000 Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of EXHIBIT B attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as EXHIBIT C.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as EXHIBIT D which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, order(A) solely for the purpose of effecting purchases of Purchase Shares hereunder, decreeat least 10,000,000 shares of Common Stock and (B) as Additional Commitment Shares in accordance with Section 4(f) hereof, stipulation or injunction could reasonably be expected to prevent consummation 970,350 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Michigan issued by the Secretary of State of the State of Michigan as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aArticles of Incorporation as certified by the Secretary of State of the State of Michigan within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as EXHIBIT E.
(l) A registration statement covering the sale of all of the Commitment Shares and at least 10,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Articles of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing DateSecurities.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Aastrom Biosciences Inc)
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred:
(a) the representations and warranties The Company shall have executed each of the Seller in Sections 3.1 Transaction Documents and 3.2 delivered the same to the Buyer.
(b) The Company shall have issued to the Buyer the Initial Commitment Shares and the Warrants and shall have removed the restrictive transfer legend from the certificate representing the Initial Commitment Shares, Warrant Shares (if any) and the Signing Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares, the Warrant Shares, the Signing Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of EXHIBIT A attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as EXHIBIT B.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as EXHIBIT C which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, order(A) solely for the purpose of effecting purchases of Purchase Shares hereunder, decreeat least 5,000,000 shares of Common Stock (B) as Warrant Shares in accordance with Warrants, stipulation or injunction could reasonably be expected to prevent consummation 377,359 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation Common Stock and (C) as Additional Commitment Shares in accordance with Section 4(f) hereof, 754,717 shares of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate (without qualification as to knowledge, materiality or otherwise) to evidencing the effect that each incorporation and good standing of the conditions specified above Company in Sections 8.1(athe State of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ej) all applicable waiting periods (and any extensions thereof) under the HSR Act shall have expired or otherwise been terminated and the Florida Office of Insurance Regulation shall have approved the consummation of the transactions contemplated by this Agreement;
(f) the Seller The Company shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, certified copy of the Company and each Certificate of Incorporation as certified by the Secretary of State of the Consolidated Subsidiaries, certified by an appropriate authority State of Delaware within ten (10) Trading Days of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;Commencement Date.
(gk) the Seller The Company shall have delivered to the Buyer a secretary's certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and executed by the resolutions Secretary of the board of directors Company, dated as of the Seller approving this Agreement and Commencement Date, in the transactions contemplated hereby;form attached hereto as EXHIBIT D.
(hl) A registration statement covering the Seller sale of all of the Commitment Shares, The Warrant Shares, the Signing Shares and at least 5,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a certificate final form of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying prospectus to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required be used by the organizational documents Buyer in connection with any sales of such entitiesany Commitment Shares, the resolutions of the Board of Directors Warrant Shares, Signing Shares or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Date.Purchase
Appears in 1 contract
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer.
(b) The Company shall have issued to the Buyer all of the Commitment Shares required under Section 4(f) and shall have removed the restrictive transfer legend from the certificate representing the Commitment Shares and Signing Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in Sections 3.1 and 3.2 the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of EXHIBIT A attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as EXHIBIT B.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as EXHIBIT C which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, ordersolely for the purpose of effecting purchases of Purchase Shares hereunder, decree, stipulation or injunction could reasonably be expected to prevent consummation at least 5,000,000 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Nevada issued by the Secretary of State of the State of Nevada as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of Nevada within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as EXHIBIT D.
(l) A registration statement covering the sale of all of the Commitment Shares, Signing Shares and at least 5,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares, Signing Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares, Signing Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;, including, without limitation, the Company's issuance of the Securities and the Buyer's ownership of the Securities.
(fo) the Seller The Company shall have delivered to provided the Buyer a certificate of organizationwith the information requested by the Buyer in connection with its due diligence requests made prior to, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, of the Company and each of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entitiesconnection with, the resolutions Commencement, in accordance with the terms of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(iSection 4(g) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Datehereof.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Millenium Holding Group Inc /Az/)
CONDITIONS TO THE BUYER'S OBLIGATION. TO MAKE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing buy Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that the Company may begin sales of Purchase Shares) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer;
(b) The Company shall have issued to the Buyer the Commitment Shares;
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in Sections 3.1 and 3.2 the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market, other than a general halt in trading in the Common Stock by the Principal Market under halt codes indicating pending or released material news, and the Securities shall be approved for listing upon the Principal Market;
(d) The Buyer shall have received the opinion of the Company’s legal counsel dated as of the Commencement Date in customary form and substance;
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the Effective Date date of this Agreement and as of the Closing -13- Commencement Date as though made at the Closing and all other that time (except for representations and warranties that speak as of the Seller a specific date, which shall be true and correct in all material respects as of the Effective Date and as of the Closing as though made at the Closing except for any inaccuracy that would not constitute a Material Adverse Effect;
(bsuch specific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through with the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closingform attached hereto as Exhibit A;
(cf) no Legal Proceeding The Board of Directors of the Company or a duly authorized committee thereof shall have adopted the Signing Resolutions, substantially in the form provided to the Buyer, which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date;
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, ordersolely for the purpose of effecting future purchases of Purchase Shares hereunder, decree, stipulation or injunction could reasonably be expected to prevent consummation 13,341,750 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transactionCommon Stock;
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Buyer and have been delivered to the Transfer Agent;
(i) The Company shall have delivered to the Buyer a certificate (without qualification as to knowledge, materiality or otherwise) to evidencing the effect that each incorporation and good standing of the conditions specified above Company in Sections 8.1(athe State of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (10) through 8.1(c) is satisfied in all respectsBusiness Days of the Commencement Date;
(ej) [Intentionally Omitted.];
(k) The Company shall have delivered to the Buyer a secretary’s certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as Exhibit B;
(l) The Shelf Registration Statement shall have been declared effective under the 1933 Act by the SEC and no stop order with respect thereto shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final and complete form of prospectus supplement, dated and current as of the Commencement Date, to be used in connection with any issuances of any Commitment Shares or any Purchase Shares to the Buyer, and to be filed by the Company within two (2) Business Days after the Commencement Date pursuant to Rule 424(b). The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws;
(m) No Event of Default has occurred and is continuing, or any extensions thereofevent which, after notice and/or lapse of time, would become an Event of Default has occurred;
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any control share acquisition, business combination, stockholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation, other than Section 203 of the Delaware General Corporation Law, that is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) the Seller shall have delivered to the Buyer a certificate of organization, or its equivalentincluding, and certificate(s) of good standing and/or existencewithout limitation, or its equivalent, of the Company and each of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s issuance of the Securities and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions Buyer’s ownership of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the ClosingSecurities; and
(ko) Seller The Company shall have arranged for transfer provided the Buyer with the information reasonably requested by the Buyer in connection with its due diligence requests made prior to, or in connection with, the Commencement, in accordance with the terms of employees identified in Section 5.22(a)(ii4(f) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Datehereof.
Appears in 1 contract
Samples: Common Stock Purchase Agreement
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer including the Registration Rights Agreement substantially in Sections 3.1 the form of EXHIBIT A hereto.
(b) The Company shall have issued to the Buyer the Commitment Shares and 3.2 shall have removed the restrictive transfer legend from the Commitment Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date in the form of EXHIBIT B attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as EXHIBIT C.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as EXHIBIT D which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, ordersolely for the purpose of effecting purchases of Purchase Shares hereunder, decree, stipulation or injunction could reasonably be expected to prevent consummation at least 5,000,000 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as EXHIBIT E.
(l) A registration statement covering the sale of all of the Commitment Shares and at least 5,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing DateSecurities.
Appears in 1 contract
CONDITIONS TO THE BUYER'S OBLIGATION. TO MAKE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing buy Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that the Company may begin sales) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer;
(b) The Company shall have issued to the Buyer the Commitment Shares and shall have removed the restrictive transfer legend from the certificate representing the Commitment Shares;
(c) The Common Stock shall be authorized for quotation on the Principal Market, no suspension of trading in Sections 3.1 and 3.2 the Common Stock shall be pending or threatened by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market;
(d) The Buyer shall have received the opinions of the Company's General Counsel dated as of the Commencement Date substantially in the form of EXHIBIT A attached hereto;
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closingform attached hereto as EXHIBIT B;
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as EXHIBIT C which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date;
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock solely for the purpose of effecting purchases of Purchase Shares hereunder, order, decree, stipulation or injunction could reasonably be expected to prevent consummation 8,000,000 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transactionCommon Stock;
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent;
(i) The Company shall have delivered to the Buyer a certificate (without qualification as to knowledge, materiality or otherwise) to evidencing the effect that each incorporation and good standing of the conditions specified above Company in Sections 8.1(athe State of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (10) through 8.1(c) is satisfied in all respectsBusiness Days of the Commencement Date;
(ej) The Company shall have delivered to the Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) Business Days of the Commencement Date;
(k) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as EXHIBIT D;
(l) A registration statement covering the sale of all of the Commitment Shares and up to 8,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final and complete form of prospectus, dated and current as of the Commencement Date, to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares, and to be filed by the Company one Business Day after the Commencement Date. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws;
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred;
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the ClosingSecurities; and
(ko) Seller The Company shall have arranged for transfer provided the Buyer with the information reasonably requested by the Buyer in connection with its due diligence requests made prior to, or in connection with, the Commencement, in accordance with the terms of employees identified in Section 5.22(a)(ii4(g) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Datehereof.
Appears in 1 contract
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer including the Registration Rights Agreement substantially in Sections 3.1 and 3.2 the form of EXHIBIT A hereto.
(b) The Company shall have removed the restrictive transfer legend from the Commitment Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date in the form of EXHIBIT B attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all respects as of the Effective Date and as of the Closing as though made at the Closing and all other representations and warranties of the Seller shall be true and correct in all respects as of the Effective Date and as of the Closing as though made at the Closing except for any inaccuracy that would not constitute a Material Adverse Effect;
(b) the Seller and the Company shall have performed and complied with all of their covenants hereunder in all material respects through the Closing, (except to the extent that any of such covenants are representations and warranties is already qualified by terms such as “material,” or “Material Adverse Effect,” to materiality in which case Section
(f) The Board of Directors of the Seller Company shall have performed adopted resolutions in the form attached hereto as EXHIBIT D which shall be in full force and complied with all effect without any amendment or supplement thereto as of such covenants (as so written, including the term “material” and “Material”) in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;Commencement Date.
(cg) no Legal Proceeding shall be pending or threatened in writing against As of the SellerCommencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, ordersolely for the purpose of effecting purchases of Purchase Shares hereunder, decree, stipulation or injunction could reasonably be expected to prevent consummation at least 5,000,000 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Nevada issued by the Secretary of State of the State of Nevada as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of Nevada within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as EXHIBIT E.
(l) A registration statement covering the sale of all of the Commitment Shares and at least 5,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing DateSecurities.
Appears in 1 contract
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer including the Registration Rights Agreement substantially in Sections 3.1 the form of EXHIBIT A hereto. ----------
(b) The Company shall have issued to the Buyer the Commitment Shares and 3.2 shall have removed the restrictive transfer legend from the certificate representing the Commitment Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date in form reasonably customary.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as EXHIBIT C. ----------
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as EXHIBIT D which shall be pending in full --------- force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, ordersolely for the purpose of effecting purchases of Purchase Shares hereunder, decree, stipulation or injunction could reasonably be expected to prevent consummation at least 25,000,000 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Nevada issued by the Secretary of State of the State of Nevada as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of Nevada within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as EXHIBIT E. ----------
(l) A registration statement covering the sale of all of the Commitment Shares and at least 25,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing DateSecurities.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Paving Stone Corp)
CONDITIONS TO THE BUYER'S OBLIGATION. TO MAKE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing buy Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that the Company may begin sales) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer;
(b) The Company shall have issued to the Buyer the Initial Commitment Shares and shall have removed the restrictive transfer legend from the certificate representing the Initial Commitment Shares;
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in Sections 3.1 and 3.2 the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market up to the Exchange Cap;
(d) The Buyer shall have received the opinions of Xxxxxx Law Group P.C., the Company's legal counsel, dated as of the Commencement Date substantially in the form of EXHIBIT A attached hereto;
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closingform attached hereto as EXHIBIT B;
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as EXHIBIT C which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date;
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, order(A) solely for the purpose of effecting purchases of Purchase Shares hereunder, decree2,000,000 shares of Common Stock and (B) as Additional Commitment Shares in accordance with Section 4(e) hereof, stipulation or injunction could reasonably be expected to prevent consummation 86,933 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transactionCommon Stock;
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent;
(i) The Company shall have delivered to the Buyer a certificate (without qualification as to knowledge, materiality or otherwise) to evidencing the effect that each incorporation and good standing of the conditions specified above Company in Sections 8.1(athe State of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (10) through 8.1(c) is satisfied in all respectsBusiness Days of the Commencement Date;
(ej) The Company shall have delivered to the Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) Business Days of the Commencement Date;
(k) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as EXHIBIT D;
(l) A registration statement covering the sale of all of the Commitment Shares and Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final and complete form of prospectus, dated and current as of the Commencement Date, to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares, and to be filed by the Company one Business Day after the Commencement Date. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws;
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred;
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;
(f) , including, without limitation, the Seller shall have delivered to the Buyer a certificate of organization, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, Company's issuance of the Company Securities and each the Buyer's ownership of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entities, the resolutions of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(i) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the ClosingSecurities; and
(ko) Seller The Company shall have arranged for transfer provided the Buyer with the information requested by the Buyer in connection with its due diligence requests made prior to, or in connection with, the Commencement, in accordance with the terms of employees identified in Section 5.22(a)(ii4(g) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Datehereof.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Competitive Technologies Inc)
CONDITIONS TO THE BUYER'S OBLIGATION. TO COMMENCE PURCHASES OF SHARES OF COMMON STOCK. The Buyer’s obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing commence purchases of Purchase Shares under this Agreement is subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditionsconditions on or before the Commencement Date (the date that sales begin) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred; provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) the representations and warranties The Company shall have executed each of the Seller Transaction Documents and delivered the same to the Buyer.
(b) The Company shall have issued to the Buyer the Initial Commitment Shares and shall have removed the restrictive transfer legend from the certificate representing the Initial Commitment Shares.
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in Sections 3.1 and 3.2 the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of EXHIBIT A attached hereto.
(e) The representations and warranties of the Company in Sections 5.1, 5.2, 5.7(a)(i)-(iv), 5.15(b) and 5.15(e) shall be true and correct in all material respects as (except to the extent that any of the Effective Date and as of the Closing as though made at the Closing and all other such representations and warranties of the Seller is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the Effective Date date when made and as of the Closing Commencement Date as though made at the Closing that time (except for any inaccuracy representations and warranties that would not constitute speak as of a Material Adverse Effect;
(bspecific date) the Seller and the Company shall have performed performed, satisfied and complied with all of their covenants hereunder in all material respects through the Closingcovenants, except agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the extent that such covenants are qualified by terms such as “material,” or “Material Adverse Effect,” in which case the Seller Commencement Date. The Buyer shall have performed and complied with all received a certificate, executed by the CEO, President or CFO of such covenants (the Company, dated as so writtenof the Commencement Date, including to the term “material” and “Material”) foregoing effect in all respects through the Closing; provided however that if Seller, Company or Consolidated Subsidiaries do not complete the covenants contained in Section 6.14, such incompletion shall not delay Closing;form attached hereto as EXHIBIT B.
(cf) no Legal Proceeding The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as EXHIBIT C which shall be pending in full force and effect without any amendment or threatened in writing against supplement thereto as of the SellerCommencement Date.
(g) As of the Commencement Date, the Company or any Consolidated Subsidiary wherein an unfavorable judgmentshall have reserved out of its authorized and unissued Common Stock, order(A) solely for the purpose of effecting purchases of Purchase Shares hereunder, decreeat least 6,000,000 shares of Common Stock and (B) as Additional Commitment Shares in accordance with Section 4(f) hereof, stipulation or injunction could reasonably be expected to prevent consummation 340,136 shares of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation of any such transaction;Common Stock.
(dh) The Irrevocable Transfer Agent Instructions, in form acceptable to the Seller Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of California issued by the Secretary of State of the State of California as of a date within ten (without qualification as to knowledge, materiality or otherwise10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the effect that each Buyer a certified copy of the conditions specified above in Sections 8.1(aCertificate of Incorporation as certified by the Secretary of State of the State of California within ten (10) through 8.1(c) is satisfied in all respects;Trading Days of the Commencement Date.
(ek) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as EXHIBIT D.
(l) A registration statement covering the sale of all of the Commitment Shares and at least 3,000,000 Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final form of prospectus to be used by the Buyer in connection with any sales of any Commitment Shares or any Purchase Shares. The Company shall have made all filings under all applicable waiting periods federal and state securities laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such laws.
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any extensions thereofcontrol share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the HSR Act shall have expired Certificate of Incorporation or otherwise been terminated and the Florida Office laws of Insurance Regulation shall have approved the consummation state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement;, including, without limitation, the Company's issuance of the Securities and the Buyer's ownership of the Securities.
(fo) the Seller The Company shall have delivered to provided the Buyer a certificate of organizationwith the information requested by the Buyer in connection with its due diligence requests made prior to, or its equivalent, and certificate(s) of good standing and/or existence, or its equivalent, of the Company and each of the Consolidated Subsidiaries, certified by an appropriate authority of the applicable governmental authority issuing such certificate in the jurisdiction of each entity’s creation, formation, or organization;
(g) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of such Seller certifying to such Seller’s organizational documents (including any operating agreements) and the resolutions of the board of directors of the Seller approving this Agreement and the transactions contemplated hereby;
(h) the Seller shall have delivered to the Buyer a certificate of a secretary or assistant secretary of the Company and each of the Consolidated Subsidiaries certifying to the Company’s and the Consolidated Subsidiaries’ organizational documents (including any operating agreements) and, to the extent required by the organizational documents of such entitiesconnection with, the resolutions Commencement, in accordance with the terms of the Board of Directors or other governing bodies of such entities approving this Agreement, the Transaction Documents to which the Company or such Consolidated Subsidiary is a party, and the transactions contemplated hereby and thereby;
(iSection 4(g) the Seller shall have delivered to the Buyer the certificate representing the Outstanding Stock duly endorsed in blank, and all other proper forms for transfer of the Outstanding Stock;
(j) the Seller shall have delivered to the Buyer, to the extent so requested by Buyer, duly executed resignations from the directors and officers of the Company and the Consolidated Subsidiaries, effective as of the Closing; and
(k) Seller shall have arranged for transfer of employees identified in Section 5.22(a)(ii) of the Disclosure Schedule to employment of the Company or applicable Consolidated Subsidiary, to be effective as of the Closing Datehereof.
Appears in 1 contract
