Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser): (a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period). (b) The Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date. (c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred. (d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending. (e) The purchase of and payment for the Shares by such Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect. (f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof. (g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market. (h) The Registration Rights Agreement shall have been executed and delivered by the Company. (i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m). (j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto. (k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing. (l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions. (m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending. (n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Common Stock Purchase Agreement (Ep Medsystems Inc), Common Stock Purchase Agreement (Ep Medsystems Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares and the Warrants being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by the Purchasers that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by such Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(nd) The Company purchase of and payment for the Shares and the Warrants by the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby, other than for Regulation D and state blue sky filings with respect to the sale of the Shares, shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching been duly obtained or made and certifying to the truth shall be in full force and correctness of effect.
(ie) the Company’s Amended All instruments and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to the Purchaser, and the Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which the Purchaser may have reasonably requested in connection with such transactions.
(f) The Company shall have delivered to each Purchaser (or such Purchaser’s authorized agent) the Stock Certificate representing the number of Shares being purchased and the Warrant Certificate representing the Warrants being purchased by such Purchaser pursuant to this Agreement.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Tyme Technologies, Inc.), Securities Purchase Agreement (Tyme Technologies, Inc.)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being and Warrants to be purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):) of the following conditions precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement hereof and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) Date. The Company shall have performed or complied with all covenants, agreements, obligations and conditions herein required to be performed or observed complied with by the Company on or prior to the Closing Date.
(cb) Prior There shall have been no material adverse change (actual or threatened) in the assets, liabilities (contingent or otherwise), affairs, business, operations, prospects, or condition (financial or otherwise) of the Company prior to the Closing Date, no event .
(c) There shall have occurred which has had a Material Adverse Effect shall have occurredbeen sold to Purchasers and to other investors Units for an aggregate purchase price of at least $65,000,000 and no more than $75,000,000.
(d) No suit, action, or other proceeding challenging this Agreement the Transaction Documents, or the transactions contemplated herebyhereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and or shall be pendingpending against or involving the Company.
(e) The purchase sale of and payment for the Shares by such Securities to the Purchasers shall not be prohibited by any law or law, rule, governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of or with any other person Person with respect to any of the transactions contemplated hereby or under any Transaction Document (including, without limitation, all filings and approvals, if any, required by the issuance Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of the Shares1976, as amended) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement to be consummated at the Closing Transaction Documents shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such any Purchaser may have reasonably requested in connection with such transactions.
(mg) No proceeding challenging this Such Purchaser shall have received from McGuireWoods LLP, outside counsel to the Company, an opinion addressed to such Purchaser, dated the Closing Date and substantially in the form of Exhibit D hereto.
(h) The Registration Rights Agreement shall have been duly executed and delivered to such Purchaser by the Company. Unless otherwise waived by the Company and such Purchaser, the Escrow Agreement shall have been duly executed and delivered to such Purchaser by the Company and the Escrow Agent.
(i) Such Purchaser shall have received from the Company an original stock certificate evidencing the purchase of the Shares for the number of Shares of Common Stock set forth opposite such Purchaser’s name on Schedule 1 hereto and an original warrant evidencing the number of Warrant Shares set forth opposite such Purchaser’s name on Schedule 1 hereto.
(j) The Company shall have delivered, in form and substance satisfactory to such Purchaser, a certificate dated the Closing Date and signed by the secretary or another appropriate executive officer of the Company, certifying (i) that attached copies of the Certificate of Incorporation, the By-Laws and resolutions of the Board approving the Transaction Documents and the transactions contemplated herebythereby, are all true, complete and correct and remain in full force and effect as of the date hereof and as of the Closing Date, and (ii) as to the incumbency and specimen signature of each officer of the Company executing the Transaction Documents and any other document delivered in connection herewith on behalf of the Company.
(k) The Company shall deliver to such Purchaser, a certificate in form and substance satisfactory to such Purchaser, dated the Closing Date and signed by the Company’s chief executive officer, certifying that (i) the representations and warranties of the Company contained in Section 3 hereof are true and correct in all respects on the Closing Date and (ii) the Company has performed and complied with all of the agreements and conditions set forth or seeking contemplated herein that are required to prohibit, alter, prevent be performed or materially delay complied with by the Closing, Company on or before the Closing Date.
(l) Such Purchaser shall have received duly executed Transfer Agent Instructions acknowledged by the Company’s transfer agent.
(m) The purchase agreement for each of the Acquisitions shall have been instituted before any courtduly executed and be in full force and effect as of the Closing Date, arbitrator or governmental bodyand no default shall have occurred and be continuing thereunder as of the Closing Date, agency or official and to the best of the Company’s knowledge, all of the conditions precedent to the Acquisitions for each of the parties thereto shall be pendinghave been satisfied with no material waiver granted as of the Closing Date.
(n) The Company shall have delivered to the Purchasers a certificate All Financial Statements of the Company executed by and each of its Subsidiaries shall have been provided or made available to such Purchaser on or before the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this AgreementClosing Date.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Gran Tierra Energy, Inc.), Securities Purchase Agreement (Gran Tierra Energy, Inc.)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares Units being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Units and the consummation of the other transactions contemplated herein to be consummated on or prior to the Closing Date, all of which shall be in full force and effect.
(c) The Registration Rights Agreement shall have been executed and delivered by the Company.
(d) In connection with the issuance of the Shares and the transactions contemplated hereby, the Company shall have submitted or shall submit on the date hereof to the NASDAQ Stock Market a “Notification Form: Listing of Additional Shares” as well as any necessary supporting documentation.
(e) The Company shall not be in breach of any of its obligations under any of the Transaction Agreements and shall have performed all covenants, agreements, obligations and conditions herein and therein required to be performed or observed by the Company on or prior to the Closing Date.
(cf) Prior The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware and shall continue to be in full force and effect as of the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(dg) No suitThere shall be no effective injunction, actionwrit, preliminary restraining order or other proceeding challenging this Agreement or any order of any nature issued by a court of competent jurisdiction directing that the transactions contemplated hereby, provided for herein or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall of them not be pendingconsummated as herein provided.
(eh) The purchase of and payment for the Shares Units by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, the Purchasers shall have received an opinion of legal counsel to the Company substantially in the form of Exhibit E attached hereto, and such Purchaser shall have received copies (executed or certified, as may be appropriatesuch certificates of the Company’s officers certifying the conditions specified in Section 5.1(a) of all documents which such Purchaser may have reasonably requested in connection with such transactionsabove.
(mj) No proceeding challenging this Agreement stop order or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, suspension of trading shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed imposed by the Company’s Secretary attaching and certifying NASDAQ Stock Market, the SEC or any other governmental regulatory body with respect to public trading in the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this AgreementCommon Stock.
Appears in 1 contract
Samples: Securities Purchase Agreement (Warburg Pincus Private Equity Viii L P)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation several obligations of each Purchaser to consummate the Closing transactions to be consummated at the Closing, and to purchase and pay for the Shares Notes being purchased by it at the Closing pursuant to this Agreement is Agreement, are subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be have been true and correct in all material respects, in each case, on and as of the date of this Agreement and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period)hereof.
(b) The Company shall have performed in all covenants, agreements, material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to Each Purchaser shall have received a certificate, dated the Closing Date, no event shall signed by the Chief Executive Officer or the Chief Financial Officer of the Company, certifying on behalf of the Company that the conditions specified in the foregoing Sections 6.1(a) and (b) have occurred which has had a Material Adverse Effect shall have occurredbeen fulfilled.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares Notes by such Purchasers each Purchaser shall not be prohibited or enjoined by any court order or prohibited by any law or governmental order regulation (other than a law or regulation. All necessary consentsgovernmental regulation in the form effective on the date of this Agreement).
(e) The Company and the Trustee shall have executed and delivered an Indenture that accurately reflects, approvalsin all material respects, licensesthe description of the Notes set forth in Schedule II hereto, Permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitationmatters not described or set forth in Schedule II hereto, the issuance of the Shares) shall have been duly obtained or made and Indenture shall be in full force form and effectsubstance reasonably satisfactory to KKR.
(f) The Company shall have complied with all applicable requirements of federal executed and state securities or “blue sky” laws with respect delivered to the issuance of Purchasers the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereofRegistration Rights Agreement.
(g) The Common Stock of Purchasers and KKR shall have received from Shearman & Sterling LLP and the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market Deputy General Counsel to the Company, opinions substantially in the form attached hereto as Exhibits B-1 and (ii) shall not have been suspended from trading on The Nasdaq Capital MarketB-2.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the CompanyCompany will list, signed by its Presidentsubject to official notice of issuance, Chief Executive Officer or Chief Financial Officer, dated as any Common Stock to be issued upon conversion of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m)Notes with NYSE.
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being and Warrants to be purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):) of the following conditions precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement hereof and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) Date. The Company shall have performed or complied with all covenants, agreements, obligations and conditions herein required to be performed or observed complied with by the Company on or prior to the Closing Date.
(cb) Prior There shall have been no material adverse change (actual or threatened) in the assets, liabilities (contingent or otherwise), affairs, business, operations, prospects, or condition (financial or otherwise) of the Company prior to the Closing Date, no event .
(c) There shall have occurred which has had a Material Adverse Effect shall have occurredbeen sold to Purchasers and to other investors Units for an aggregate purchase price of at least $65,000,000 and no more than $75,000,000.
(d) No suit, action, or other proceeding challenging this Agreement the Transaction Documents, or the transactions contemplated herebyhereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and or shall be pendingpending against or involving the Company.
(e) The purchase sale of and payment for the Shares by such Securities to the Purchasers shall not be prohibited by any law or law, rule, governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of or with any other person Person with respect to any of the transactions contemplated hereby or under any Transaction Document (including, without limitation, all filings and approvals, if any, required by the issuance Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of the Shares1976, as amended) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement to be consummated at the Closing Transaction Documents shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such any Purchaser may have reasonably requested in connection with such transactions.
(mg) No proceeding challenging this Such Purchaser shall have received from McGuireWoods LLP, outside counsel to the Company, an opinion addressed to such Purchaser, dated the Closing Date and substantially in the form of Exhibit D hereto.
(h) The Registration Rights Agreement shall have been duly executed and delivered to such Purchaser by the Company. Unless otherwise waived by the Company and such Purchaser, the Escrow Agreement shall have been duly executed and delivered to such Purchaser by the Company and the Escrow Agent.
(i) Such Purchaser shall have received from the Company an original stock certificate evidencing the purchase of the Shares for the number of Shares of Common Stock set forth opposite such Purchaser’s name on Schedule 1 hereto and an original warrant evidencing the number of Warrant Shares set forth opposite such Purchaser’s name on Schedule 1 hereto.
(j) The Company shall have delivered, in form and substance satisfactory to such Purchaser, a certificate dated the Closing Date and signed by the secretary or another appropriate executive officer of the Company, certifying (i) that attached copies of the Certificate of Incorporation, the By-Laws and resolutions of the Board approving the Transaction Documents and the transactions contemplated herebythereby, are all true, complete and correct and remain in full force and effect as of the date hereof and as of the Closing Date, and (ii) as to the incumbency and specimen signature of each officer of the Company executing the Transaction Documents and any other document delivered in connection herewith on behalf of the Company.
(k) The Company shall deliver to such Purchaser, a certificate in form and substance satisfactory to such Purchaser, dated the Closing Date and signed by the Company’s chief executive officer, certifying that (i) the representations and warranties of the Company contained in Section 3 hereof are true and correct in all respects on the Closing Date and (ii) the Company has performed and complied with all of the agreements and conditions set forth or seeking contemplated herein that are required to prohibit, alter, prevent be performed or materially delay complied with by the Closing, Company on or before the Closing Date.
(l) Such Purchaser shall have received duly executed Transfer Agent Instructions acknowledged by the Company’s transfer agent.
(m) The purchase agreement for each of the Acquisitions shall have been instituted before any courtduly executed and be in full force and effect as of the Closing Date, arbitrator or governmental bodyand no default shall have occurred and be continuing thereunder as of the Closing Date, agency or official and to the best of the Company’s knowledge, all of the conditions precedent to the Acquisitions for each of the parties thereto shall be pendinghave been satisfied with no material waiver granted as of the Closing Date.
(n) The Company shall have delivered to the Purchasers a certificate All Financial Statements of the Company executed by and each of its Subsidiaries shall have been provided or made available to such Purchaser on or before the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this AgreementClosing Date.
Appears in 1 contract
Samples: Securities Purchase Agreement (Gran Tierra Energy, Inc.)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser the Purchasers to consummate the Closing and to purchase and pay for the Shares Securities being purchased by it pursuant to this Agreement is subject to the satisfaction or written waiver of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) No Company Shareholder Approval shall be required for any transaction contemplated hereby in this Agreement or in other Operative Agreements.
(b) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement respects on and as of the Closing Date (except for such representations with the same force and warranties which are effect as though made expressly on and as of the Closing Date; provided, that any representation or warranty that addresses a matter as of a specified particular date or period, which shall be true and correct or remain true and correct in all material respects, as herein above required, respects as of such specified date date; and provided, further, however, that if any such representation or periodwarranty shall be subject to a qualification as to materiality, such qualified representation and warranty shall be true and correct in all respects at the Closing Date (unless the representation or warranty address a matter as of a particular date, in which case it shall remain true and correct in all respects as of such date).
(bc) The Company shall have performed in all covenants, agreements, obligations and conditions material respects all covenants herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by such Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official Government Entity and shall be pending.
(ne) No preemptive right, co-sale right, right of first refusal or other similar right of shareholders exists with respect to any of the Securities or the issuance and sale thereof, other than those that have been expressly waived prior to the Closing Date.
(f) The Company purchase of and payment for the Securities by the Purchasers shall not be prohibited by any Law. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any Government Entity or of any other person with respect to any of the transactions contemplated hereby shall have delivered to the Purchasers a certificate been duly obtained or made and shall be in full force and effect.
(g) No stop order or suspension of the Company executed trading shall have been imposed by the Company’s Secretary attaching NYSE, the SEC or any other Government Entity with respect to public trading in the Common Stock.
(h) All instruments and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be reasonably satisfactory in form and substance to the Purchasers, the Purchasers shall have received an opinion of legal counsel to the Company substantially in the form of Exhibit B attached hereto, and the Purchasers shall have received such certificates of the Company’s officers as the Purchasers may have reasonably requested in connection with such transactions.
(i) The Company shall have executed the Registration Rights Agreement, in the form attached hereto as Exhibit C.
(j) Neither any due diligence investigation by the Purchasers nor any other document delivered to the Purchasers as contemplated by this Agreement, shall have revealed any facts or circumstances which, in the sole and exclusive judgment of the Purchasers, reflect in a material adverse way on the consolidated financial condition, businesses, results of operations, liquidity or prospects of the Group.
(k) The Chairman of the Company Board shall deliver to the Purchasers at the Closing a certificate certifying that the conditions specified in this Section 5.1(a) through Section 5.1(g) have been fulfilled.
(l) The appointment to the Company Board of Nxxx Xxxx or another representative designated by the Purchasers reasonably acceptable to the Company Board and its Nominating/Corporate Governance Committee shall have become effective.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser Purchaser, severally, to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement and the Warrants is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement hereof and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period)Date.
(b) The There shall have been no material adverse change (actual or threatened) in the assets, liabilities, business, operations, prospects, or condition (financial or otherwise) of the Company prior to the Closing Date; and the Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date; and the Company shall have performed all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the Transaction Documents, or the transactions contemplated herebyhereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and or shall be pendingpending against or involving the Company.
(ed) The purchase sale of and payment for the Shares by such and the issuance of the Warrants (and the Warrant Shares) to the Purchasers shall not be prohibited by any law or law, rule, governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of or with any other person Person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement to be consummated at and the Closing Transaction Documents shall be satisfactory in form and substance to such each Purchaser, and such each Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser the Purchasers may have reasonably requested in connection with such transactions.
(mf) No proceeding challenging this Each Purchaser shall have received from Dxxxxx Gxxxxxx PLLC, outside counsel to the Company, an opinion addressed to such Purchaser, dated the Closing Date and substantially in the form of Exhibit C hereto.
(g) The Registration Rights Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official executed and shall be pendingdelivered by the Company.
(nh) Each Purchaser shall have received from the Company an original stock certificate evidencing the purchase of the Shares and an original Warrant, in each case for the number of shares of Common Stock and the number of Warrant Shares, respectively, set forth opposite such Purchaser’s name on Schedule 1 hereto.
(i) Each Purchaser shall have received a copy of duly executed Transfer Agent Instructions acknowledged by the Company’s transfer agent.
(j) The Company shall pay up to $50,000 for RA Capital’s fees and expenses incurred in connection with the preparation, execution and delivery of this Agreement and the Transaction Documents.
(k) The Company shall have delivered a certificate dated the Closing Date and signed by the secretary or another officer of the Company, certifying (i) that attached copies of the Articles of Incorporation, the By-Laws and resolutions of the Board approving this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby, are all true, complete and correct and remain in full force and effect as of the date hereof, and (ii) as to the Purchasers a certificate incumbency and specimen signature of each officer of the Company executed executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of the Company.
(l) The Company shall deliver to each Purchaser, a certificate dated the Closing Date and signed by the Company’s Secretary attaching and chief financial officer, certifying as to the truth and correctness of (irequirements set forth in Sections 5.1(a) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iiib).
(m) Trading in the resolutions adopted Common Stock shall not have been suspended by the Company’s Board of Directors SEC or the Trading Market and trading in connection with securities, generally, as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the transactions contemplated by this AgreementUnited States or New York State authorities.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Rockwell Medical Technologies Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares and the Warrants being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) The Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company pursuant to this Agreement on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares and the Warrants by such Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares, the Warrants, the Conversion Shares and the Warrant Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of foreign, federal and state securities or “blue sky” laws with respect to the issuance of the SharesShares and the Warrants, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock Conversion Shares and Warrant Shares of the Company (i) shall be designated for quotation or conditionally listed (subject to the filing of usual documentation) on the Toronto Stock Exchange, (ii) shall be listed on The Nasdaq Capital Market the NASDAQ National Market, and (iiiii) shall not have been suspended from trading on The Nasdaq Capital Marketthe NASDAQ National Market or the Toronto Stock Exchange.
(h) The Registration Rights This Agreement and the other Transaction Documents shall have been executed by the Company and delivered by the Companyto each Purchaser.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (mb).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(ki) A stock certificate shall have been delivered by the Company representing the number of shares of Series B Preferred purchased by such Purchaser and (ii) one or more warrants to purchase the number of Common Shares set forth opposite each Purchaser’s name on Exhibit A shall have been delivered by the Company, and in each case shall be, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), ) and against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(lk) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(ml) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(nm) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended Articles of Continuance and Restated Certificate of Incorporation, By-Laws and (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board board of Directors directors in connection with the transactions contemplated by this AgreementAgreement and the other Transaction Documents.
(n) The Company shall have delivered to the Purchasers a certificate from Industry Canada, Corporations Directorate, dated as of a date within five days of the date of the Closing, with respect to the good standing of the Company.
(o) The Purchasers will have received an opinion on behalf of the Company, dated as of the date of the Closing, from Cawkell Xxxxxx Xxxxxxxx, LLP, counsel to the Company, and from Xxxxxx & Whitney LLP, special counsel to the Company, in the forms attached as Exhibits D, E and F, respectively.
(p) Simultaneously with or prior to the Closing, the Company shall have sold securities to third party purchasers, who are not acting in concert with the Purchasers, for an aggregate minimum of not less than three million United States dollars ($3,000,000 USD) and an aggregate maximum of not more than four million five hundred thousand United States dollars ($4,500,000 USD). The securities sold to any such third party purchasers shall be on, and have, such terms and conditions as the Company shall determine in its sole discretion (the “Contemporaneous Offering”).
Appears in 1 contract
Samples: Securities Purchase Agreement (Forbes Medi Tech Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares and Warrants being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Registration Rights Agreement and the applicable Warrant shall have been executed and delivered by the Company.
(c) The Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company under this Agreement on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares Securities by such Purchasers the Purchaser shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effecteffect (except for the filing of a Form D and related blue sky law filings which will be timely filed after the Closing Date).
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, the Purchaser shall have received an opinion of legal counsel to the Company substantially in the form of Exhibit C attached hereto, and such Purchaser shall have received counterpart originals, or certified or other copies (executed or certified, as may be appropriate) of all documents documents, including without limitation records of corporate or other proceedings, which it may have reasonably requested in connection therewith and such certificates of the Company’s officers as such Purchaser may have reasonably requested in connection with such transactions.
(mg) No proceeding challenging this Agreement or The Purchasers shall have delivered a minimum of $18.2 million of the transactions contemplated hereby, or seeking aggregate purchase price for all of the Shares and the Warrants to prohibit, alter, prevent or materially delay be purchased hereunder into the designated escrow account established for the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(nh) The Company Purchasers shall have delivered received a copy of the irrevocable instructions to the Company’s transfer agent instructing the transfer agent to deliver the Shares to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection accordance with the transactions contemplated by this Agreement.amounts set forth in Exhibit A.
Appears in 1 contract
Samples: Securities Purchase Agreement (ARYx Therapeutics, Inc.)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares Securities being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Registration Rights Agreement and respective Warrant shall have been executed and delivered by the Company.
(c) The Company shall not have been adversely affected in any material way prior to the Closing Date; and the Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares Securities by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person Person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such . Such Purchaser shall have received copies (executed or certified, such certificates of the Company's officers as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(mg) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have A legal opinion from Xxxx Xxxxx LLP has been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate in the form of Exhibit D attached hereto.
(h) The aggregate Purchase Price shall not be less than $10,000,000 nor more than $20,000,000.
(i) From the Company executed date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the SEC or the Trading Market (except for any suspension of trading of limited duration agreed to by the Company’s Secretary attaching and certifying , which suspension shall be terminated prior to the truth and correctness of (i) Closing), and, at any time prior to the Company’s Amended and Restated Certificate of IncorporationClosing Date, (ii) the Company’s Bylaws and (iii) the resolutions adopted trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the Company’s Board United States or New York State authorities nor shall there have occurred any material outbreak or escalation of Directors hostilities or other national or international calamity of such magnitude in connection with its effect on, or any material adverse change in, any financial market which, in each case, in the transactions contemplated by this Agreementreasonable judgment of each Purchaser, makes it impracticable or inadvisable to purchase the Shares at the Closing.
Appears in 1 contract
Samples: Warrant and Common Stock Purchase Agreement (Protalex Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate at the Closing and to the purchase and pay payment for the Notes and Shares being to be purchased by it pursuant to this Agreement such Purchaser is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):) of the following conditions precedent:
(a) a. The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) hereof. The Company shall have performed or complied with all covenants, agreements, obligations and conditions herein required to be performed or observed complied with by the Company on or prior to the Closing Datedate hereof.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) b. No suit, action, or other proceeding challenging this Agreement or the Transaction Documents, or the transactions contemplated herebyhereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and or shall be pendingpending against or involving the Company.
c. The sale of the Notes (eand the issuance of the Conversion Shares) The purchase and the issuance of and payment for the Shares by such to the Purchasers shall not be prohibited by any law or law, rule, governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of or with any other person Person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) d. All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement to be consummated at and the Closing Transaction Documents shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such any Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this e. Such Purchaser shall have received from Xxxxxx & Xxxxxxxxx PC, counsel to the Company, an opinion addressed to such Purchaser, dated the Closing Date and substantially in the form of Exhibit D hereto.
f. The Registration Rights Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official executed and shall be pendingdelivered to such Purchaser by the Company.
(n) g. Such Purchaser shall have received from the Company an original Note, in each case in the original principal amount set forth opposite such Purchaser’s name on Exhibit A hereto.
h. The Company shall have delivered delivered, in form and substance satisfactory to such Purchaser, a certificate dated the Closing Date and signed by the secretary or another appropriate executive officer of the Company, certifying (i) that attached copies of the Articles of Incorporation, the By-Laws and resolutions of the Board approving this Agreement and the Transaction Documents are all true, complete and correct and remain in full force and effect as of the date hereof, and (ii) as to the Purchasers a certificate incumbency and specimen signature of each officer of the Company executed executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of the Company.
i. The Company shall have delivered, a certificate signed by the Company’s Secretary attaching and chief executive officer certifying to the truth and correctness of that (i) the Company’s Amended representations and Restated Certificate warranties of Incorporation, the Company contained in Section 3 hereof are true and correct in all respects on the Closing Date and (ii) the Company’s Bylaws Company has performed and (iii) complied with all of the resolutions adopted agreements and conditions set forth or contemplated herein that are required to be performed or complied with by the Company’s Board of Directors in connection with Company on or before the transactions contemplated by this AgreementClosing Date.
Appears in 1 contract
Samples: Securities Purchase Agreement (Forster Drilling Corp)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares Securities being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Securities and the consummation of the other transactions contemplated herein to be consummated on or prior to the Closing Date, all of which shall be in full force and effect.
(c) The Registration Rights Agreement and the Warrants shall have been executed and delivered by the Company.
(d) The Company shall have performed all covenants, agreements, obligations and conditions herein and therein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by such Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(nf) The Company purchase of and payment for the Securities by the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching been duly obtained or made and certifying to the truth shall be in full force and correctness of effect.
(ig) the Company’s Amended All instruments and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors corporate proceedings in connection with the transactions contemplated by this AgreementAgreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received such certificates of the Company’s officers as such Purchaser may have reasonably requested in connection with such transactions.
Appears in 1 contract
Samples: Securities Purchase Agreement (Canadian Superior Energy Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares Securities being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Registration Rights Agreement shall have been executed and delivered by the Company.
(c) The Company shall not have been adversely affected in any material way prior to the Closing Date; and the Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares Securities by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal obtained and state securities or “blue sky” laws with respect delivered to the issuance of Purchasers the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereofLock-up Agreements referred to in Section 3.25 hereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be reasonably satisfactory in form and substance to such Purchaser, the Purchasers shall have received an opinion of legal counsel to the Company substantially in the form of Exhibit B attached hereto, and such Purchaser shall have received copies (executed or certified, such certificates of the Company’s officers as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Advancis Pharmaceutical Corp)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and Each Purchaser’s obligations to purchase and pay for the Shares being purchased by it pursuant to this Agreement is at Closing shall be subject to the performance by the Company of its agreements theretofore to be performed hereunder and to the satisfaction of the following conditions precedent (or waiver by such Purchaser):the Majority Purchasers), prior thereto or concurrently therewith, of the following further conditions:
(a) a. The representations and warranties contained herein of the Company that are qualified as to “materiality” contained in Article III of this Agreement shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement on and as of the Closing Date (or, if made as of a specified date, as of such other date) in all material respects (except for such representations and warranties which that are made expressly qualified as of a specified date to materiality or periodMaterial Adverse Effect, which shall be true and correct or true and correct in all material respects, ) as herein above required, though such representations and warranties were made at and as of such specified date or period).date;
(b) b. The Company shall have performed and complied in all covenants, material respects with all agreements, obligations covenants and conditions herein contained in this Agreement which are required to be performed or observed complied with by the Company prior to or on the Closing Date;
c. The Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and the consummation of the other transactions contemplated herein to be consummated on or prior to the Closing Date., including the receipt of any and all consents required under any material contracts of the Company and any and all required shareholder and regulatory approvals (including any required approvals in accordance with NASDAQ Marketplace Rules including Rules 4350(i) and 4351), all of which shall be in full force and effect;
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) d. No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted by any Person other than a Purchaser or Affiliate thereof before any court, arbitrator or governmental body, agency or official and shall be pending.;
e. No development shall have occurred in any Existing Action or Proceeding (eas defined in the Joint Development Agreement) that is, or that could reasonably be expected to be (in the reasonable judgment of the Purchasers’ Representative), materially adverse to the assets, properties, liabilities, existing or planned operations, ownership, prospects or condition (financial or otherwise) of the Red River Project;
f. The purchase of and payment for the Shares by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All , and all necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.;
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) g. There shall not have been suspended occurred any event, development or occurrence that has had or would reasonably be expected to have a Material Adverse Effect;
h. The Purchasers shall have received an opinion, dated the Closing Date from trading on The Nasdaq Capital Market.the Company’s counsel, Schuchat, Xxxxxx & Xxxxxxx, LLC, in substantially the form attached hereto as Exhibit F;
(h) i. The Registration Rights Agreement shall have been executed and delivered by the Company.;
(i) A certificate j. No stop order or suspension of trading shall have been delivered imposed by the CompanyNASDAQ Capital Market, signed by its Presidentthe SEC or any other governmental regulatory body with respect to public trading in the Common Stock and shall be pending;
k. In connection with the issuance of the Conversion Shares and the transactions contemplated hereby, Chief Executive Officer the Company shall have submitted or Chief Financial Officer, dated shall submit on the Closing Date to the NASDAQ Capital Market a “Notification Form: Listing of Additional Shares” as well as any necessary supporting documentation;
l. The Certificates of Designations shall have been filed with the Secretary of State of the State of Colorado and shall continue to be in full force and effect as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).;
(j) m. The Company Purchasers shall have delivered to each Purchaser an opinion of counsel for the Companyreceived a certificate, dated the Closing Date, in substantially the form signed by a duly authorized executive officer of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered certifying that the conditions specified in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends foregoing Sections 6.01(a) – (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.g) hereof have been fulfilled;
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser n. The Purchasers shall have received a certificate, dated the Closing Date, of the Secretary of the Company attaching: (i) a true and complete copy of the Articles of Incorporation of the Company, with all amendments thereto; (ii) true and complete copies (executed or certifiedof the Company’s Bylaws, as may be appropriateamended, in effect as of such date; (iii) a certificate from the Secretary of all documents State of the State of Colorado as to the good standing of the Company; (iv) a certificate of authorization to do business as a foreign corporation from the appropriate officials of each jurisdiction in which such Purchaser may have reasonably requested in connection with such transactions.
the Company operates; and (mv) No proceeding challenging resolutions of the Board authorizing the execution and delivery of this Agreement or Agreement, the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay and the Closing, issuance of the Shares;
o. Closing (as defined in the Joint Development Agreement) shall have occurred under the Joint Development Agreement;
p. The definitive agreements for the Construction Debt Financing (as defined in the LLC Agreement) shall have been instituted before any court, arbitrator or governmental body, agency or official executed and shall be pending.
the conditions to closing (nother than closing under the Transaction Agreements) The Company set forth in such agreements shall have delivered been satisfied, and the initial funding thereunder shall occur before or simultaneously with the Closing; and
q. All instruments and proceedings to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors be taken in connection with the transactions contemplated by this Agreement, and all documents incident thereto, shall be reasonably satisfactory in form and substance to the Purchasers and their special counsel, Xxxxxx & Xxxxxxx LLP.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares and Warrants being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver conditions, any of which may be waived by such Purchaser)::
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company under this Agreement on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by such Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement Warrant shall have been executed and delivered by the Company.
(id) A certificate The Company shall have been delivered by a Certificate, executed on behalf of the Company, signed Company by its President, Chief Executive Officer or its Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (mb).
(je) The Company shall have delivered to each Purchaser an opinion a Certificate, executed on behalf of counsel for the CompanyCompany by its Secretary, its Chief Executive Officer or its Chief Financial Officer, dated as of the Closing Date, in substantially certifying the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered resolutions adopted by the Company, registered in the name Board of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment Directors of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with approving the transactions contemplated by this Agreement and the issuance of the Securities, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to be consummated at the Closing shall be satisfactory in form signatures and substance to such Purchaser, authority of persons signing this Agreement and such Purchaser shall have received copies (executed or certified, as may be appropriate) related documents on behalf of all documents which such Purchaser may have reasonably requested in connection with such transactionsthe Company.
(mf) Since the date of execution of this Agreement, no event or series of events shall have occurred that has had or would reasonably be expected to have a Material Adverse Effect.
(g) No stop order or suspension of trading shall have been imposed by the NASDAQ Global Market, the SEC or any other governmental regulatory body with respect to public trading in the Common Stock, nor shall suspension by the NASDAQ Global Market or the SEC have been threatened, as of the Closing Date, in writing by the NASDAQ Global Market or the SEC.
(h) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(ni) The Company purchase of and payment for the Securities by the Purchaser shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby shall have delivered to been duly obtained or made and shall be in full force and effect (except for the Purchasers filing of a certificate Form D and related blue sky law filings which will be timely filed after the Closing Date).
(j) The NASDAQ Global Market listing of additional shares application for the Company executed by Securities shall have been filed in accordance with the Company’s Secretary attaching NASDAQ Rules.
(k) All instruments and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors corporate proceedings in connection with the transactions contemplated by this AgreementAgreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser; the Purchaser shall have received an opinion of legal counsel to the Company substantially in the form of Exhibit C attached hereto; such Purchaser shall have received counterpart originals, or certified or other copies of all documents, including without limitation, records of corporate or other proceedings, which it may have reasonably requested in connection therewith.
(l) The Purchasers shall have received a copy of the irrevocable instructions to the Company’s transfer agent instructing the transfer agent to deliver the Securities to the Purchasers in accordance with the amounts set forth in Exhibit A.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being and Warrants to be purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):) of the following conditions precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement respects on and as of the Closing Date (except for such representations with the same force and warranties which are effect as though made expressly on and as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) the Closing Date. The Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed complied with by the Company on or prior to the Closing Date.
(cb) Prior to the Closing Date, There shall have been no event shall have occurred or events which has had occurred since the date hereof that taken individually or in the aggregate would reasonably be expected to have a Material Adverse Effect shall have occurredEffect.
(dc) No suit, action, or other proceeding challenging this Agreement or the Transaction Documents, or the transactions contemplated herebyhereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency Governmental Authority or official and or shall be pendingpending against or involving the Company or any Subsidiary.
(ed) The purchase sale of and payment for the Shares by such and Warrant Shares and the issuance of the Warrants to the Purchasers shall not be prohibited by any law or law, rule, governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency Governmental Authority or of or with any other person Person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(e) The Purchasers shall have received from Ropes & Xxxx LLP, outside counsel to the Company, an opinion addressed to such Purchaser, dated the Closing Date and substantially in the form of Exhibit C hereto.
(f) The Company Purchasers shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect received from Xxxxx Xxxx & Xxxxxxxx LLP, outside regulatory counsel to the issuance of the SharesCompany, and each an opinion addressed to such Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereofdated the Closing Date and substantially in the form of Exhibit D hereto.
(g) The Common Stock of Purchasers and Tejas Securities Group, Inc. (“Tejas Securities”), as placement agent, shall have received a letter from KBA Group LLP, independent certified public accountants for the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market Company, dated the Closing Date, addressed to Tejas Securities and (ii) shall not have been suspended from trading on The Nasdaq Capital Marketthe Purchasers, in form and substance reasonably satisfactory to Tejas Securities and the Purchasers.
(h) The Registration Rights Agreement shall have been executed and delivered to the Purchasers by the Company.
(i) A certificate The Company shall have been delivered to the Purchasers a certificate substantially in the form of Exhibit E hereto dated the Closing Date and signed by the secretary or another officer of the Company, signed by its Presidentcertifying (i) that the copies of the Certificate of Incorporation, Chief Executive Officer or Chief Financial Officerthe By-Laws and resolutions of the Board approving this Agreement, dated the Transaction Documents and the transactions contemplated hereby and thereby attached thereto, are all true, complete and correct and remain in full force and effect as of the Closing Datesuch date, certifying and (ii) as to the fulfillment incumbency and specimen signature of each officer of the conditions specified Company executing this Agreement, the Transaction Documents and any other document delivered in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m)connection herewith on behalf of the Company.
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, Purchasers a certificate substantially in substantially the form of Exhibit B attached heretoF hereto dated the Closing Date and signed by the Company’s chief financial officer, certifying that (i) the representations and warranties of the Company contained in Section 3 hereof are true and correct in all respects on the Closing Date and (ii) the Company has performed and complied with all of the agreements and conditions set forth or contemplated herein that are required to be performed or complied with by the Company on or before the Closing Date.
(k) A Such Purchaser shall have received from the Company an original stock certificate shall have been delivered by evidencing the Companypurchase of the Shares and an original Warrant, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing each case for the number of shares of Common Stock purchased by and the number of Warrant Shares, respectively, set forth opposite such Purchaser’s name on Schedule I hereto, free of all restrictive and other bearing the legends (except as provided in required to be imprinted thereon pursuant to Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) The Company shall have delivered to the Purchasers a certificate of good standing for the Company and each Subsidiary issued by the Secretary of State of its applicable state of incorporation or organization, and, with respect to the Company a certificate of qualification to do business issued by the Secretary of the Commonwealth of the Commonwealth of Virginia.
(m) The Purchasers shall have received a copy of the duly executed Transfer Agent Instruction Letter in the form of Exhibit G hereto.
(n) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement to be consummated at and the Closing Transaction Documents shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such any Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(no) The Company shall have delivered to the Purchasers a certificate occurrence of the Company executed by the Company’s Secretary attaching and certifying Closing on or prior to the truth and correctness of (i) the Company’s Amended and Restated Certificate of IncorporationDecember 31, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement2004.
Appears in 1 contract
Samples: Securities Purchase Agreement (First Avenue Networks Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):
(a) The representations and warranties contained herein of the Company that are qualified as to “"materiality” " shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) The Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by such Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” "BLUE SKY" laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s 's request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital SmallCap Market and (ii) shall not have been suspended from trading on The Nasdaq Capital SmallCap Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (mb).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s 's Secretary attaching and certifying to the truth and correctness of (i) the Company’s 's Amended and Restated Certificate of Incorporation, (ii) the Company’s 's Bylaws and (iii) the resolutions adopted by the Company’s 's Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Ep Medsystems Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate at the Closing and to the purchase and pay payment for the Shares being Notes and Warrants to be purchased by it pursuant to this Agreement such Purchaser is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):) of the following conditions precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) hereof. The Company shall have performed or complied with all covenants, agreements, obligations and conditions herein required to be performed or observed complied with by the Company on or prior to the Closing Datedate hereof.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(db) No suit, action, or other proceeding challenging this Agreement or the Transaction Documents, or the transactions contemplated herebyhereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and or shall be pendingpending against or involving the Company.
(ec) The purchase sale of the Notes (and payment for the Shares by such issuance of the Conversion Shares) and the issuance of the Warrants (and the Warrant Shares) to the Purchasers shall not be prohibited by any law or law, rule, governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of or with any other person Person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement to be consummated at and the Closing Transaction Documents shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such any Purchaser may have reasonably requested in connection with such transactions.
(me) No proceeding challenging this Such Purchaser shall have received from Xxxxxxxx and Wedge, special counsel to the Company, an opinion addressed to such Purchaser, dated the Closing Date and substantially in the form of Exhibit E hereto.
(f) Such Purchaser shall have received from Xxxxxxx Xxxxx LLP, special counsel to the Company, an opinion addressed to such Purchaser, dated the Closing Date and substantially in the form of Exhibit F hereto.
(g) The Registration Rights Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official executed and shall be pendingdelivered to such Purchaser by the Company.
(nh) Such Purchaser shall have received from the Company an original Note and an original Warrant, in each case in the original principal amount and the number of Warrant Shares, respectively, set forth opposite such Purchaser’s name on Exhibit A hereto.
(i) The Company shall have delivered delivered, in form and substance satisfactory to such Purchaser, a certificate dated the Closing Date and signed by the secretary or another appropriate executive officer of the Company, certifying (i) that attached copies of the Certificate of Incorporation, the By-Laws and resolutions of the Board approving this Agreement and the Transaction Documents are all true, complete and correct and remain in full force and effect as of the date hereof, and (ii) as to the Purchasers a certificate incumbency and specimen signature of each officer of the Company executed executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of the Company.
(j) The Company shall deliver to such Purchaser, a certificate in form and substance satisfactory to such Purchaser, dated the Closing Date and signed by the Company’s Secretary attaching and chief operating officer, certifying to the truth and correctness of that (i) the Company’s Amended representations and Restated Certificate warranties of Incorporation, the Company contained in Section 3 hereof are true and correct in all respects on the Closing Date and (ii) the Company’s Bylaws Company has performed and (iii) complied with all of the resolutions adopted agreements and conditions set forth or contemplated herein that are required to be performed or complied with by the Company’s Board of Directors in connection with Company on or before the transactions contemplated by this AgreementClosing Date.
Appears in 1 contract
Samples: Securities Purchase Agreement (Wilson Holdings, Inc.)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares Securities being purchased by it pursuant to this Agreement is subject to the satisfaction fulfillment to such Purchaser’s satisfaction, on or prior to the Closing Date, of the following conditions precedent (or waiver conditions, any of which may be waived by such PurchaserPurchaser (as to itself only):
(a) The representations and warranties contained herein of made by the Company that are in Section 3 hereof qualified as to “materiality” materiality shall be true and correctcorrect at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties contained herein of made by the Company that are in Section 3 hereof not so qualified as to materiality shall be true and correct in all material respectsrespects at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in each case, as of the date of this Agreement and as of the Closing Date (except for which case such representations and warranties which are made expressly as of a specified date representation or period, which warranty shall be true and correct or true and correct in all material respects, as herein above required, respects as of such specified date or period).
(b) earlier date. The Company shall have performed in all covenants, agreements, material respects all obligations and conditions covenants herein required to be performed or observed by the Company it on or prior to the Closing Date.
(b) The Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Securities and the consummation of the other transactions contemplated by the Transaction Documents, all of which shall be in full force and effect.
(c) Prior to the Closing Date, no event The Registration Rights Agreement and respective Warrant shall have occurred which has had a Material Adverse Effect shall have occurredbeen executed and delivered by the Company.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase No judgment, writ, order, injunction, award or decree of and payment for the Shares by such Purchasers shall not be prohibited or by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permits, orders and authorizations ofcourt, or registrationsjudge, declarations and filings withjustice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or administrative agency proceeding shall have been instituted by any governmental authority, enjoining or of any other person with respect to any preventing the consummation of the transactions contemplated hereby (including, without limitation, or in the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effectother Transaction Documents.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Sharesdelivered a Certificate, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock executed on behalf of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or its Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(asubsections (a), (b), (c), (d), (e), (f), (g) and (m)e) of this Section 5.1.
(jg) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Securities, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to each Purchaser the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company.
(h) The Purchasers shall have received an opinion of from legal counsel for the Company, dated as of the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered acceptable to the Purchasers a certificate of and addressing such legal matters as the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this AgreementPurchasers may reasonably request.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (IsoRay, Inc.)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation several obligations of each Purchaser to consummate the Closing transactions to be consummated at the Closing, and to purchase and pay for the Shares Securities being purchased by it at the Closing pursuant to this Agreement is Agreement, are subject to the satisfaction or waiver of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” contained herein shall be true and correctcorrect on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date, except (i) for any failure to be so true and correct which has not had and would not have, individually or in the aggregate, a Material Adverse Effect (other than the representations and warranties contained herein of the Company that are set forth in Sections 3.2, 3.3, 3.4 and 3.25, each of which shall be true and correct in all material respects and subject to (ii) below), and (ii) for those representations and warranties which address matters only as of a particular date, which representations and warranties shall have been true and correct as of such particular date, except for any failure to be so true and correct as of such particular date which has not so qualified had and would not, individually or in the aggregate, have a Material Adverse Effect (or, the case of Section 3.2, which shall be true and correct in all material respects); provided, in each casehowever, as that, for purposes of determining the accuracy of the date representations and warranties of the Company set forth herein for purposes of this Agreement Section 6.2(a), all “Material Adverse Effect” and as of the Closing Date (except for “material” qualifications set forth in such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period)disregarded.
(b) The Company shall have performed in all covenants, agreements, material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to Each Purchaser shall have received a certificate, dated the Closing Date, signed by the Chief Executive Officer or the Chief Financial Officer of the Company, certifying on behalf of the Company that the conditions specified in Sections 6.2(a), 6.2(b) and 6.2(d) have been fulfilled.
(d) Since the date of this Agreement, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official occurred and shall be pendingcontinuing.
(e) The purchase of and payment for the Shares by such Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) Company shall have been duly obtained or made executed and shall be in full force and effectdelivered the Registration Rights Agreement.
(f) The Company and the Trustee shall have complied with all applicable requirements of federal executed and state securities or “blue sky” laws with respect to delivered the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereofIndenture.
(g) The Common Stock Company and The Bank of New York Mellon Trust Company, N.A., as trustee, shall have executed and delivered the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital MarketSupplemental Indenture.
(h) The Registration Rights Agreement Pledgors (as defined in the Pledge Agreement) and the Collateral Agent (as defined in the Pledge Agreement) shall have been executed and delivered by the CompanyAmendment to the Pledge and Security Agreement substantially in the form attached hereto as Exhibit I (the “Pledge Agreement Amendment”).
(i) A certificate The Company shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as purchased no less than $20 million in aggregate principal amount of the Closing Date8% Notes pursuant to Consent and Purchase Agreements substantially in the form attached hereto as Exhibit J, certifying as to the fulfillment of the conditions specified which agreements shall not have been amended, modified, supplemented or waived in Sections 5.1(a), (b), (c), (d), (e), (f), (g) any material respect following execution and (m)delivery thereof.
(j) The Company shall have executed and delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, Transaction Fee Agreement in substantially the form of attached hereto as Exhibit B attached heretoK (the “Transaction Fee Agreement”).
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Each Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered from counsel to the Purchasers a certificate of Company, an opinion substantially in the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.form attached hereto as Exhibit L.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares Securities being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Registration Rights Agreement and respective Warrant shall have been executed and delivered by the Company.
(c) The Company shall not have been adversely affected in any material way prior to the Closing Date; and the Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares Securities by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such . Such Purchaser shall have received copies (executed or certified, such certificates of the Company’s officers as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(ng) The Company shall have delivered to has received executed Subscription Agreements representing an aggregate Purchase Price of at least $5,000,000, provided that the Purchasers a certificate of the Company executed may waive this condition 5.1(g) by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreementunanimous written consent.
Appears in 1 contract
Samples: Warrant and Common Stock Purchase Agreement (Protalex Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1 (a)).
(b) The Registration Rights Agreement shall have been executed and delivered by the Company.
(c) The Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Coulter Pharmaceuticals Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis SECTION 5.1(A)).
(b) The Prior to the Closing Date, no Material Adverse Event shall have occurred and the Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(ed) The purchase of and payment for the Shares by such Purchasers and the issuance of the Warrants to such Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the SharesShares and the Warrants) shall have been duly obtained or made and shall be in full force and effect.
(fe) The Company shall have complied with all applicable requirements of federal and state securities or “"blue sky” " laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s 's request, shall have been provided reasonable evidence thereof.
(f) The Shares shall have been approved for listing on The Nasdaq National Market or the Nasdaq SmallCap Market, and each Purchaser, at such Purchaser's request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(h) The Warrants shall have been executed and delivered by the Company.
(i) Each of EGS Private Healthcare Partnership, L.P. and EGS Private Healthcare Counterpart L.P. shall have converted the outstanding principal and unpaid interest on its respective Bridge Note issued by the Company to it on December 30, 2002 into Shares simultaneously with the sale of the other Shares to the Purchasers.
(j) A certificate shall have been delivered by the Company, signed by its President, President or Chief Executive Officer or Chief Financial Officer, dated to the effect that: (i) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects on and as of the Closing Date, certifying as to the fulfillment though newly made on and as of that date (except for representations and warranties which speak as of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (gdate of the Agreement or as of another specific date or period covered thereby) and (m)ii) the Company has performed or complied with, in all material respects, all of its covenants contained in this Agreement and required to be performed or complied with on or before Closing Date.
(jk) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit EXHIBIT B attached hereto.
(kl) A single stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such the Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section SECTION 6.2 hereofhereof and otherwise in the form of good delivery), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(lm) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Ep Medsystems Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement and the Warrants is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement hereof and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period)Date.
(b) The There shall have been no material adverse change (actual or threatened) in the assets, liabilities, business, operations, prospects, or condition (financial or otherwise) of the Company prior to the Closing Date; and the Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the Transaction Documents, or the transactions contemplated herebyhereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and or shall be pendingpending against or involving the Company.
(ed) The purchase sale of and payment for the Shares by such and the issuance of the Warrants (and the Warrant Shares) to the Purchasers shall not be prohibited by any law or law, rule, governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of or with any other person Person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement to be consummated at and the Closing Transaction Documents shall be satisfactory in form and substance to such each Purchaser, and such each Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser the Purchasers may have reasonably requested in connection with such transactions.
(mf) No proceeding challenging this Each Purchaser shall have received from Xxxxxx, Xxxxxx Xxxxxxxxx, Xxxx & Xxxx LLP, outside counsel to the Company, an opinion addressed to such Purchaser, dated the Closing Date and substantially in the form of Exhibit C hereto.
(g) The Registration Rights Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official executed and shall be pendingdelivered by the Company.
(nh) Each Purchaser shall have received from the Company an original stock certificate evidencing the purchase of the Shares and an original Warrant, in each case for the number of shares of Common Stock and the number of Warrant Shares, respectively, set forth opposite such Purchaser’s name on Schedule 1 hereto.
(i) Each Purchaser shall have received a copy of duly executed Transfer Agent Instructions acknowledged by the Company’s transfer agent.
(j) The Company shall have delivered a certificate dated the Closing Date and signed by the secretary or another officer of the Company, certifying (i) that attached copies of the Certificate of Incorporation, the By-Laws and resolutions of the Board approving this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby, are all true, complete and correct and remain in full force and effect as of the date hereof, and (ii) as to the Purchasers a certificate incumbency and specimen signature of each officer of the Company executed executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of the Company.
(k) The Company shall deliver to each Purchaser, a certificate dated the Closing Date and signed by the Company’s Secretary attaching and chief financial officer, certifying to the truth and correctness of that (i) the Company’s Amended representations and Restated Certificate warranties of Incorporation, the Company contained in Section 3 hereof are true and correct in all material respects on the Closing Date and (ii) the Company’s Bylaws Company has performed and (iii) complied with all of the resolutions adopted agreements and conditions set forth or contemplated herein that are required to be performed or complied with by the Company’s Board of Directors Company on or before the Closing Date.
(l) Trading in connection with the transactions contemplated Common Stock shall not have been suspended by this Agreementthe SEC and trading in securities, generally, as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being to be purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):) of the following conditions precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement on and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) Date. The Company shall have performed or complied with all covenants, agreements, obligations and conditions herein required to be performed or observed complied with by the Company on or prior to the Closing Datedate hereof.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(db) No suit, action, or other proceeding challenging this Agreement or the Transaction Documents, or the transactions contemplated herebyhereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and or shall be pendingpending against or involving the Company.
(ec) The purchase sale of and payment for the Shares by such and the issuance of the Warrants (and the Warrant Shares) to the Purchasers shall not be prohibited by any law or law, rule, governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of or with any other person Person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement to be consummated at and the Closing Transaction Documents shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such any Purchaser may have reasonably requested in connection with such transactions.
(me) No proceeding challenging this The Registration Rights Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official executed and shall be pendingdelivered to such Purchaser by the Company.
(nf) Such Purchaser shall have received from the Company an original stock certificate evidencing the purchase of the Shares and an original Warrant, in each case for the number of Shares of Common Stock and the number of Warrant Shares, respectively, set forth opposite such Purchaser's name on Schedule 1 hereto.
(g) The Company shall have delivered delivered, in form and substance satisfactory to such Purchaser, a certificate dated the Closing Date and signed by the secretary or another appropriate executive officer of the Company, certifying (i) that attached copies of the Certificate of Incorporation, the By-Laws and resolutions of the Board approving this Agreement and the Transaction Documents are all true, complete and correct and remain in full force and effect as of the date hereof, and (ii) as to the Purchasers a certificate incumbency and specimen signature of each officer of the Company executed executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of the Company.
(h) The Company shall deliver to such Purchaser, a certificate in form and substance satisfactory to such Purchaser, dated the Closing Date and signed by the Company’s Secretary attaching and 's chief executive officer, certifying to the truth and correctness of that (i) the Company’s Amended representations and Restated Certificate warranties of Incorporation, the Company contained in Section 3 hereof are true and correct in all respects on the Closing Date and (ii) the Company’s Bylaws Company has performed and (iii) complied with all of the resolutions adopted agreements and conditions set forth or contemplated herein that are required to be performed or complied with by the Company’s Board of Directors in connection with Company on or before the transactions contemplated by this AgreementClosing Date.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein (i) which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct only in all material respects in order to satisfy as to such representation or warranty the condition precedent set forth in the foregoing provisions of this Section 5.1 (a) or (ii) which is made as of a specific date, such representation and warranty need be true and correct in all material respects, as herein above required, only as of such specified specific date or periodin order to satisfy as to such representation and warranty the condition precedent set forth in the foregoing provisions of this Section 5.1(a)).
(b) The Registration Rights Agreement shall have been executed and delivered by the Company.
(c) The Company shall have performed in all covenants, agreements, material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such PurchaserPurchaser and the placement agents, and such Purchaser and the placement agents shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser or the Placement Agent may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Transkaryotic Therapies Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement respects on and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) Date. The Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed complied with by the Company on or prior to the Closing Date.
(cb) Prior to the Closing Date, There shall have been no event shall have occurred or events which has had occurred since the date hereof and taken individually or in the aggregate is reasonably likely to have a Material Adverse Effect shall have occurredEffect.
(dc) No suit, action, or other proceeding challenging this Agreement or the Transaction Documents, or the transactions contemplated herebyhereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and or shall be pendingpending against or involving the Company.
(ed) The purchase sale of and payment for the Shares by such and the issuance of the Warrants to the Purchasers shall not be prohibited by any law or law, rule, governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of or with any other person Person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(fe) The Company Purchasers shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect received from Xxxxxxx XxXxxxxxx LLP, outside counsel to the issuance of the SharesCompany, and each an opinion addressed to such Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereofdated the Closing Date and substantially in the form of Exhibit C hereto.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(hf) The Registration Rights Agreement shall have been executed and delivered to the Purchasers by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, Purchasers a certificate substantially in substantially the form of Exhibit B D hereto dated the Closing Date and signed by the secretary or another officer of the Company, certifying (i) that the copies of the Certificate of Incorporation, the By-Laws and resolutions of the Board approving this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby attached heretothereto, are all true, complete and correct and remain in full force and effect as of such date, and (ii) as to the incumbency and specimen signature of each officer of the Company executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of the Company.
(kh) A stock certificate The Company shall have been delivered to the Purchasers a certificate substantially in the form of Exhibit E hereto dated the Closing Date and signed by the Company’s chief financial officer, registered certifying that (i) the representations and warranties of the Company contained in Section 3 hereof are true and correct in all material respects on the name Closing Date and (ii) the Company has performed and complied with all of such the agreements and conditions set forth or contemplated herein that are required to be performed or complied with by the Company on or before the Closing Date.
(i) Such Purchaser or nominee as designated by such Purchaser shall have received from the Company an original stock certificate evidencing the purchase of the Shares and an original Warrant, in writing, representing each case for the number of shares of Common Stock purchased by and the number of Warrant Shares, respectively, set forth opposite such Purchaser’s name on Schedule I hereto, free of all restrictive and other bearing the legends (except as provided in required to be imprinted thereon pursuant to Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(nj) The Company shall have delivered to the Purchasers a certificate of the Company executed good standing issued by the Company’s Secretary attaching of State of the State of Delaware, and certifying a certificate of qualification to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted do business by the Company’s Board Secretary of Directors the Commonwealth of the Commonwealth of Massachusetts.
(k) The Purchasers shall have received a copy of the duly executed Transfer Agent Instruction Letter in connection with the transactions contemplated by this Agreementform of Exhibit F hereto.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares Securities being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Registration Rights Agreement shall have been executed and delivered by the Company.
(c) The Company shall not have been adversely affected in any material way prior to the Closing Date; and the Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares Securities by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(ng) The Company shall have delivered obtained any and all consents, permits, approvals, registrations and waivers (including, without limitation, approval of the Proposal (as defined below) by its shareholders in accordance with applicable law and the applicable requirements of the NYSE Amex or AIM of the London Stock Exchange) necessary or appropriate for consummation of the purchase and sale of the Shares, Warrants and the consummation of the other transactions contemplated by the Operative Agreements, all of which shall be in full force and effect. Promptly following the execution and delivery of this Agreement, the Company shall take all action necessary to call a meeting of its shareholders (the “Shareholders Meeting”), which shall occur not later than December 30, 2011, as may be extended by the mutual Agreement of the Company and the Majority Purchasers (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s shareholders for the issuance and sale to the Purchasers of the Shares and Warrants not to exceed 15,000,000 Shares and a certificate corresponding number of Warrant Shares (or such lesser number as the Company shall determine) (the “Proposal”). In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement and form of proxy) for use at the Shareholders Meeting and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials to holders of record of the Company’s voting equity securities as of the record date for the Shareholders Meeting. Each Purchaser shall promptly furnish in writing to the Company such information relating to such Purchaser and its investment in the Company as the Company may reasonably request for inclusion in the Proxy Statement. The Company will comply in all material respects with Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the shareholders of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated Shareholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to shareholders or at the time of the Shareholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Shareholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Shareholders Meeting, any event relating to the Company or any of its Affiliates that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the Exchange Act, the Company will promptly inform the Purchasers thereof. The failure to hold the Shareholder Meeting on, or before, December 30, 2011, as a result of any SEC review or comments to the Proxy Statement shall permit either the Company or the Majority Purchasers to terminate this Agreement upon written notice to the other party without any further liability or obligation to consummate the Closing.
(h) No stop order or suspension of trading shall have been imposed by this AgreementNYSE Amex, the London Stock Exchange, the SEC or any other governmental or regulatory body with respect to public trading in the Company’s Common Stock.
Appears in 1 contract
Samples: Warrant and Common Stock Purchase Agreement (Enova Systems Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being to be purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):) of the following conditions precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) hereof. The Company shall have performed or complied with all covenants, agreements, obligations and conditions herein required to be performed or observed complied with by the Company on or prior to the Closing Datedate hereof.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(db) No suit, action, or other proceeding challenging this Agreement or the Transaction Documents, or the transactions contemplated herebyhereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and or shall be pendingpending against or involving the Company.
(ec) The purchase sale of and payment for the Shares by such and the issuance of the Warrants (and the Warrant Shares) to the Purchasers shall not be prohibited by any law or law, rule, governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of or with any other person Person with respect to any of the transactions contemplated hereby (including, without limitation, all filings and approvals, if any, required by the issuance Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of the Shares1976, as amended) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement to be consummated at and the Closing Transaction Documents shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such any Purchaser may have reasonably requested in connection with such transactions.
(me) No proceeding challenging this Such Purchaser shall have received from Xxxxxxx Xxxxx LLP, outside counsel to the Company, an opinion addressed to such Purchaser, dated the Closing Date and substantially in the form of EXHIBIT A hereto.
(f) The Registration Rights Agreement or shall have been executed and delivered to such Purchaser by the transactions contemplated herebyCompany.
(g) Such Purchaser shall have received from the Company an original stock certificate evidencing the purchase of the Shares and an original Warrant, or seeking to prohibitin each case for the number of Shares of Common Stock and the number of Warrant Shares, alterrespectively, prevent or materially delay the Closingset forth opposite such Purchaser's name on Schedule 1 hereto.
(h) The Company, through its wholly-owned subsidiary Motient Ventures Holding Inc. ("INVESTMENT SUB"), shall have been instituted before any courtentered into a binding agreement with Mobile Satellite Ventures, arbitrator or governmental bodyL.P. ("MSV") pursuant to which the Company, agency or official through Investment Sub, shall increase its equity ownership interest in MSV at a pre-money valuation of MSV not to exceed $1.0 billion on a fully-diluted basis (including the conversion of all outstanding convertible indebtedness of MSV)(the "MSV TRANSACTION"), and the agreements relating to the MSV Transaction shall be pendingcontain standard representations, warranties and covenants acceptable to the Board, and the closing of the MSV Transaction shall occur contemporaneously with the Closing.
(ni) The Company shall have delivered delivered, in form and substance satisfactory to such Purchaser, a certificate dated the Closing Date and signed by the secretary or another appropriate executive officer of the Company, certifying (i) that attached copies of the Certificate of Incorporation, the By-Laws and resolutions of the Board approving this Agreement, the Transaction Documents and the agreements for the MSV Transaction and the transactions contemplated hereby and thereby, are all true, complete and correct and remain in full force and effect as of the date hereof, and (ii) as to the Purchasers a certificate incumbency and specimen signature of each officer of the Company executed executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of the Company.
(j) The Company shall deliver to such Purchaser, a certificate in form and substance satisfactory to such Purchaser, dated the Closing Date and signed by the Company’s Secretary attaching and 's chief operating officer, certifying to the truth and correctness of that (i) the Company’s Amended representations and Restated Certificate warranties of Incorporation, the Company contained in Section 3 hereof are true and correct in all respects on the Closing Date and (ii) the Company’s Bylaws Company has performed and complied with all of the agreements and conditions set forth or contemplated herein that are required to be performed or complied with by the Company on or before the Closing Date.
(iiik) the resolutions adopted Such Purchaser shall have received duly executed Transfer Agent Instructions acknowledged by the Company’s Board 's transfer agent.
(l) Such Purchaser shall have received from the General Counsel of Directors the Company an opinion addressed to such Purchaser, dated the Closing Date and substantially in connection with the transactions contemplated by this Agreementform of EXHIBIT D hereto.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by the Purchasers that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Registration Rights Agreement shall have been executed and delivered by the Company.
(c) The Company shall have performed in all covenants, agreements, material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (includinghereby, without limitation, other than for Regulation D and state blue sky filings with respect to the issuance sale of the Shares) , shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaserthe Purchasers, and such Purchaser the Purchasers shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser the Purchasers may have reasonably requested in connection with such transactions.
(mg) No proceeding challenging this Agreement or the transactions contemplated herebyA legal opinion of Xxxx and Xxxx LLP, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered counsel to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching , in form and certifying substance reasonably satisfactory to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this AgreementPurchasers.
Appears in 1 contract
Samples: Securities Purchase Agreement (Bio Imaging Technologies Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Registration Rights Agreement shall have been executed and delivered by the Company.
(c) The Company shall not have been adversely affected in any material way prior to the Closing Date; and the Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(ng) The Company shall have delivered to the Purchasers a certificate Certificate, executed on behalf of the Company executed by its Chief Executive Officer or its Chief Financial Officer, dated as of the Closing Date, certifying to the fulfillment of the conditions specified in subsections (a), (b), and (c) of this Section 5.1
(h) The Purchasers shall have received an copy of and shall be entitled to rely upon the opinion from the Company’s Secretary attaching and certifying counsel to the truth Placement Agent, dated as of the Closing Date, in form and correctness of (i) substance reasonably acceptable to the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this AgreementPurchasers.
Appears in 1 contract
Samples: Stock Purchase Agreement (Regeneration Technologies Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being and Warrants to be purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):) of the following conditions precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement hereof and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) Date. The Company shall have performed or complied with all covenants, agreements, obligations and conditions herein required to be performed or observed complied with by the Company on or prior to the Closing Date.
(cb) Prior There shall have been no material adverse change (actual or threatened) in the assets, liabilities (contingent or otherwise), affairs, business, operations, prospects, or condition (financial or otherwise) of the Company prior to the Closing Date, no event .
(c) There shall have occurred which has had a Material Adverse Effect shall have occurredbeen sold to Purchasers Units for an aggregate purchase price of at least $19,999,998 and no more than $30,000,001.
(d) No suit, action, or other proceeding challenging this Agreement the Transaction Documents, or the transactions contemplated herebyhereby or thereby, or seeking to prohibit, alter, prevent or materially delay the ClosingClosing Date, shall have been instituted before any court, arbitrator or governmental body, agency or official and or shall be pendingpending against or involving the Company.
(e) The purchase sale of and payment for the Shares by such Securities to the Purchasers shall not be prohibited by any law or law, rule, governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of or with any other person Person with respect to any of the transactions contemplated hereby or under any Transaction Document (including, without limitation, all filings and approvals, if any, required by the issuance Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of the Shares1976, as amended) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement to be consummated at the Closing Transaction Documents shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such any Purchaser may have reasonably requested in connection with such transactions.
(mg) No proceeding challenging this Such Purchaser shall have received from McGuireWoods LLP and Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxx & Xxxxxxxx, outside counsel to the Company, opinions addressed to the Purchasers, dated the Closing Date and substantially in the form of Exhibits B1 and B2 hereto.
(h) The Registration Rights Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any courtduly executed and delivered to such Purchaser by the Company. Unless otherwise waived by the Company and such Purchaser, arbitrator or governmental body, agency or official the Escrow Agreement shall have been duly executed and shall be pendingdelivered to such Purchaser by the Company and the Escrow Agent.
(ni) The Company shall have delivered the Transfer Agent Instructions acknowledged by its transfer agent, to issue to the Purchasers Purchaser a stock certificate evidencing the number of Shares of Common Stock set forth opposite such Purchaser’s name on Schedule 1 and Schedule 2 hereto.
(j) The Company shall have delivered, in form and substance satisfactory to such Purchaser, a certificate dated the Closing Date and signed by the secretary or another appropriate executive officer of the Company, certifying (i) that attached copies of the Certificate of Incorporation, the By-laws and resolutions of the Board approving the Transaction Documents and the transactions contemplated thereby, are all true, complete and correct and remain in full force and effect as of the date hereof and as of the Closing Date, and (ii) as to the incumbency and specimen signature of each officer of the Company executed executing the Transaction Documents and any other document delivered in connection herewith on behalf of the Company.
(k) The Company shall deliver to such Purchaser a certificate, in form and substance satisfactory to such Purchaser, dated the Closing Date and signed by the Company’s Secretary attaching and chief executive officer, certifying to the truth and correctness of that (i) the Company’s Amended representations and Restated Certificate warranties of Incorporation, the Company contained in Section 3 hereof are true and correct in all respects on the Closing Date and (ii) the Company’s Bylaws Company has performed and (iii) complied with all of the resolutions adopted agreements and conditions set forth or contemplated herein that are required to be performed or complied with by the CompanyCompany on or before the Closing Date.
(l) The Company shall have undertaken to deliver to each Purchaser, no later than 5 business days following the Closing Date, an original Warrant evidencing the number of Warrant Shares set forth opposite such Purchaser’s Board of Directors in connection name on Schedule 1 and Schedule 2 hereto.
(m) The TARH Acquisition shall close simultaneously with the transactions contemplated by this AgreementClosing on the Closing Date, and all of the conditions precedent to the TARH Acquisition for each of the parties to the purchase agreements for the TARH Acquisition shall have been satisfied with no material waiver granted as of the Closing Date.
(n) All Financial Statements of the Company and each of its Subsidiaries shall have been provided or made available to such Purchaser on or before the Closing Date.
Appears in 1 contract
Samples: Securities Purchase Agreement (Foothills Resources Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate at the Closing and to the purchase and pay payment for the Shares being to be purchased by it pursuant to this Agreement such Purchaser is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):) of the following conditions precedent:
(a) The representations Company shall deliver to such Purchaser, a certificate in form and warranties contained herein of substance satisfactory to such Purchaser, dated the Company Closing Date and signed by the Company’s chief operating officer, certifying that are qualified as to “materiality” shall be true and correct, and (i) the representations and warranties contained herein of the Company that contained herein are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement hereof and as of the Closing Date and (except for such representations ii) the Company has performed and warranties which are made expressly as of a specified date or periodcomplied with all obligations, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) The Company shall have performed all covenants, agreements, obligations agreements and conditions set forth or herein required to be performed or observed by the Company on or prior to before the date hereof or the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(db) No suit, action, or other proceeding challenging this Agreement or the Transaction Documents, or the transactions contemplated herebyhereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and or shall be pendingpending against or involving the Company.
(ec) The purchase sale of and payment for the Shares by such to the Purchasers shall not be prohibited by any law or law, rule, governmental order or regulation. All necessary consents, approvals, licenses, Permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby .
(including, without limitation, the issuance of the Sharesd) Such Purchaser shall have been duly obtained or made received from counsel to the Company, an opinion addressed to such Purchaser, dated the Closing Date and substantially in the form of Exhibit E hereto.
(e) Such Purchaser shall be have received from the Company an original stock certificate in full force and effectthe amount of Shares set forth opposite such Purchaser’s name on Exhibit A hereto.
(f) The Company shall have complied with delivered, in form and substance satisfactory to such Purchaser, a certificate dated the Closing Date and signed by the secretary or another appropriate executive officer of the Company, certifying (i) that attached copies of the Certificate of Incorporation, the By-Laws and resolutions of the Board approving this Agreement and the Transaction Documents are all applicable requirements true, complete and correct and remain in full force and effect as of federal the date hereof, and state securities or “blue sky” laws with respect (ii) as to the issuance incumbency and specimen signature of each officer of the SharesCompany executing this Agreement, the Transaction Documents and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereofany other document delivered in connection herewith on behalf of the Company.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market[intentionally omitted].
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached heretoreceived Stockholder Approval.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Daystar Technologies Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation several obligations of each Purchaser to consummate the Closing transactions to be consummated at the Closing, and to purchase and pay for the Shares Notes being purchased by it at the Closing pursuant to this Agreement is Agreement, are subject to the satisfaction of the following conditions precedent (or waiver provided that if the Sponsor Purchasers do not consummate the transactions contemplated by such Purchaser):
(a) the Swap Agreements as of the Closing, they shall be deemed to have assumed all of the obligations of the Bank Purchaser hereunder and the Bank Purchaser shall be deemed to have assigned all of its rights hereunder to the Sponsor Purchasers and shall be released from all obligations hereunder without payment of penalty to the Company): The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except it being understood and agreed by each Purchaser that for such representations purposes of this Section 6.1(a), in the case of any representation and warranties warranty of the Company contained herein (i) which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct only in all material respects or (ii) which is made as of a specific date, such representation and warranty need be true and correct in all material respects, as herein above required, only as of such specified date or periodspecific date).
(b) . The Company shall have performed in all covenants, agreements, material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to . Each Purchaser shall have received a certificate, dated the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement signed by the Chief Executive Officer or the transactions contemplated herebyChief Financial Officer of the Company, or seeking to prohibit, alter, prevent or materially delay certifying on behalf of the Closing, shall Company that the conditions specified in the foregoing Sections 6.1(a) and (b) have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) fulfilled. The purchase of and payment for the Shares Notes by such Purchasers each Purchaser shall not be prohibited or enjoined by any law or governmental or court order or regulation. All necessary consents, approvals, licenses, Permits, orders The Company and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) Trustee shall have been duly obtained or made executed and shall be in full force and effect.
(f) delivered the Indentures. The Company shall have complied with all applicable requirements of federal executed and state securities or “blue sky” laws with respect to delivered the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement in the form attached hereto as Exhibit C (the "Rights Agreement"). The Purchasers shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by received from counsel to the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, substantially in substantially the form of attached hereto as Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.D.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Registration Rights Agreement shall have been executed and delivered by the Company.
(c) The Company shall not have been adversely affected in any material way prior to the Closing Date; and the Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, the Purchasers shall have received an opinion of legal counsel to the Company substantially in the form of Exhibit B attached hereto, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares and the Warrants being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) The Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company pursuant to this Agreement on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares and the Warrants by such Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares, the Warrants, the Conversion Shares and the Warrant Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of foreign, federal and state securities or “blue sky” laws with respect to the issuance of the SharesShares and the Warrants, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock Conversion Shares and Warrant Shares of the Company (i) shall be designated for quotation or conditionally listed (subject to the filing of usual documentation) on the Toronto Stock Exchange, (ii) shall be listed on The Nasdaq Capital Market the NASDAQ National Market, and (iiiii) shall not have been suspended from trading on The Nasdaq Capital Marketthe NASDAQ National Market or the Toronto Stock Exchange.
(h) The Registration Rights This Agreement and the other Transaction Documents shall have been executed by the Company and delivered by to the CompanyPlacement Agent on behalf of each Purchaser.
(i) A certificate shall have been delivered to the Placement Agent by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), ) and (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) . A stock certificate shall have been delivered by the CompanyCompany to the Placement Agent representing the number of shares of Series B Preferred purchased by such Purchaser and (ii) one or more warrants to purchase the number of Common Shares set forth opposite each Purchaser’s name on Exhibit A shall have been delivered by the Company to the Placement Agent, and in each case shall be, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), ) and against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(lk) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaserthe Placement Agent, and such Purchaser Placement Agent shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(ml) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(nm) The Company shall have delivered to the Purchasers Placement Agent a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended Articles of Continuance and Restated Certificate of Incorporation, By-Laws and (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board board of Directors directors in connection with the transactions contemplated by this AgreementAgreement and the other Transaction Documents.
(n) The Company shall have delivered to the Placement Agent a certificate from Industry Canada, Corporations Directorate, dated as of a date within five days of the date of the Closing, with respect to the good standing of the Company.
(o) The Placement Agent will have received an opinion on behalf of the Company, dated as of the date of the Closing, from Cawkell Xxxxxx Xxxxxxxx, LLP, counsel to the Company, and from Xxxxxx & Whitney LLP, special counsel to the Company, substantially in the forms attached as Exhibit D and Exhibit E and, if the Purchaser is resident in the United States, Exhibit F, respectively, or in such other forms as Xxxxxxxx Curhan Ford & Company, agent to the Company, may approve.
(p) Simultaneously with or prior to the Closing, the Company shall have sold securities to third party purchasers, who are not acting in concert with the Purchaser, for an aggregate minimum of not less than one million five hundred thousand United States dollars ($1,500,000 USD). The securities sold to any such third party purchasers shall be on, and have, such terms and conditions as the Company shall determine in its sole discretion (the “Contemporaneous Offering”).
Appears in 1 contract
Samples: Securities Purchase Agreement (Forbes Medi Tech Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation several obligations of each Purchaser to consummate the Closing transactions to be consummated at the Closing, and to purchase and pay for the Shares Securities being purchased by it at the Closing pursuant to this Agreement is Agreement, are subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) a. The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except it being understood and agreed by each Purchaser that for such representations purposes of this Section 7.1(a), in the case of any representation and warranties warranty of the Company contained herein which are is made expressly as of a specified date or periodspecific date, which shall such representation and warranty need be true and correct or true and correct in all material respects, as herein above required, only as of such specified date or periodspecific date).
(b) b. The Company shall have performed in all covenants, agreements, material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) c. The purchase of and payment for the Shares Securities by such Purchasers each Purchaser shall not be prohibited or enjoined by any law or governmental or court order or regulation. All necessary consents, approvals, licenses, Permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) d. The Company shall have complied with all applicable requirements of federal executed and state securities or “blue sky” laws with respect delivered to the issuance of Purchasers the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement substantially in the form attached hereto as Exhibit H (the “Registration Rights Agreement”).
e. The Purchasers shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by received from counsel to the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated an opinion substantially in the form attached hereto as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).Exhibit I.
(j) f. The Company shall have executed and delivered to each Purchaser an opinion of counsel for the Company, dated Purchasers the Notes and certificates representing the Warrants.
g. The Company and the counterparties thereto shall have executed and delivered Amendment No. 3 to the Credit Agreement substantially in the form attached hereto as Exhibit J.
h. After giving effect to the Closing Dateand the entry into Amendment No. 3 to the Credit Agreement, no Default or Event of Default (as such terms are defined in substantially the form of Exhibit B attached heretoCredit Agreement) shall have occurred and be continuing.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) i. The Company shall have delivered paid or reimbursed all fees and expenses of the Purchasers pursuant to Section 11.7.
j. The Board Designees shall have been appointed to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection accordance with the transactions contemplated by this AgreementSection 6.3.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement is subject to the satisfaction fulfillment to such Purchaser’s satisfaction, on or prior to the Closing Date, of the following conditions precedent (or waiver conditions, any of which may be waived by such PurchaserPurchaser (as to itself only):
(a) The representations and warranties contained herein of made by the Company that are in Section 3 hereof qualified as to “materiality” materiality shall be true and correctcorrect as of the date of this Agreement and through and as of the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties contained herein of made by the Company that are in Section 3 hereof not so qualified as to materiality shall be true and correct in all material respects, in each case, respects as of the date of this Agreement and through and as of the Closing Date (Date, except for to the extent any such representations and warranties which are made representation or warranty expressly speaks as of a specified date an earlier date, in which case such representation or period, which warranty shall be true and correct or true and correct in all material respects, as herein above required, respects as of such specified date or period).
(b) earlier date. The Company shall have performed in all covenants, agreements, material respects all obligations and conditions covenants herein required to be performed or observed by the Company it on or prior to the Closing Date.
(b) The Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and the consummation of the other transactions contemplated by the Transaction Documents, all of which shall be in full force and effect.
(c) Prior to the Closing Date, no event The Registration Rights Agreement shall have occurred which has had a Material Adverse Effect shall have occurredbeen executed and delivered by the Company.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase No judgment, writ, order, injunction, award or decree of and payment for the Shares by such Purchasers shall not be prohibited or by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permits, orders and authorizations ofcourt, or registrationsjudge, declarations and filings withjustice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or administrative agency proceeding shall have been instituted by any governmental authority, enjoining or of any other person with respect to any preventing the consummation of the transactions contemplated hereby (including, without limitation, or in the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effectother Transaction Documents.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Sharesdelivered a Certificate, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock executed on behalf of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or its Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(asubsections (a), (b), (c), (d), (e), (f), (g) and (m)e) of this Section 5.1, substantially in form attached as Exhibit D hereto.
(jg) The Company shall have delivered to each Purchaser a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares, and certifying the current versions of the Certificate of Incorporation and Bylaws of the Company.
(h) The Purchasers shall have received an opinion of from legal counsel for the Company, dated as of the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered acceptable to the Purchasers a certificate of and addressing such legal matters as the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this AgreementPurchasers may reasonably request.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares Securities being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver unless waived in writing by such Purchaser):the Purchasers:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Notes shall have been executed and delivered by the Company.
(c) The Company shall not have been adversely affected in any material way prior to the Closing Date; and the Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement the Operative Agreements or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares Securities by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this the Operative Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such . Such Purchaser shall have received copies (executed or certified, such certificates of the Company's officers as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(mg) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay The officers and directors of Company shall have resigned from such positions effective as of the Closing, and the Board shall have authorized the appointments as Directors of the Company of Xxxxxx Xxxxx effective immediately after the Closing; provided, however, Xxxxx Xxxxxxxxx shall remain in office until the expiration of ten days after Company files with the SEC, and mails to its shareholders of record, an Information Statement pursuant to Rule 14f-1 of the Exchange Act.
(h) The Company (i) shall have filed or caused to be filed with the Delaware Secretary of State and the United States Patent and Trademark Office (the “PTO”) a formal discharge of all security interests in the Intellectual Property and any other asset of the Company, and (ii) shall have filed a UCC-1 Financing Statement with the Delaware Secretary of State and the appropriate form, if applicable, with the PTO, in order to perfect the security interest of the Purchasers as forth in the Notes and Security Agreement.
(i) Each of the that certain September 18, 2003 Investor Rights Agreement and that certain May 25, 2005 Registration Rights Agreement shall have been instituted before any courtterminated and the Company shall have no further rights, arbitrator obligations or governmental body, agency or official and shall be pendingliabilities thereunder.
(nj) The Company’s incoming directors and officers shall be covered by a valid and enforceable directors and officers liability insurance policy, on terms reasonably satisfactory to the Purchasers, for a policy period covering at least one year from the date of this Agreement.
(k) The Company shall not have delivered to modified the Purchasers a certificate terms of any severance agreement entered into with its former officers and/or employees and shall not have accelerated the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness payment of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreementany amount payable under any such agreement.
Appears in 1 contract
Samples: Note and Common Stock Purchase Agreement (Protalex Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement and the Warrants is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement hereof and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period)Date.
(b) The There shall have been no material adverse change (actual or threatened) in the assets, liabilities, business, operations, prospects, or condition (financial or otherwise) of the Company prior to the Closing Date; and the Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the Transaction Documents, or the transactions contemplated herebyhereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and or shall be pendingpending against or involving the Company.
(ed) The purchase sale of and payment for the Shares by such and the issuance of the Warrants (and the Warrant Shares) to the Purchasers shall not be prohibited by any law or law, rule, governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of or with any other person Person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement to be consummated at and the Closing Transaction Documents shall be satisfactory in form and substance to such each Purchaser, and such each Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser the Purchasers may have reasonably requested in connection with such transactions.
(mf) No proceeding challenging this Each Purchaser shall have received from Xxxxxx, Xxxxxx Xxxxxxxxx, Xxxx & Xxxx LLP, outside counsel to the Company, an opinion addressed to such Purchaser, dated the Closing Date and substantially in the form of Exhibit C hereto.
(g) The Registration Rights Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official executed and shall be pendingdelivered by the Company.
(nh) Each Purchaser shall have received from the Company an original stock certificate evidencing the purchase of the Shares and an original Warrant, in each case for the number of shares of Common Stock and the number of Warrant Shares, respectively, set forth opposite such Purchaser’s name on Schedule 1 hereto.
(i) Each Purchaser shall have received a copy of duly executed Transfer Agent Instructions acknowledged by the Company’s transfer agent.
(j) The Company shall pay up to an aggregate of $35,000 for the RA Capital’s fees and expenses incurred in connection with the preparation, execution and delivery of this Agreement and the Transaction Documents.
(k) The Company shall have delivered a certificate dated the Closing Date and signed by the secretary or another officer of the Company, certifying (i) that attached copies of the Certificate of Incorporation, the By-Laws and resolutions of the Board approving this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby, are all true, complete and correct and remain in full force and effect as of the date hereof, and (ii) as to the Purchasers a certificate incumbency and specimen signature of each officer of the Company executed executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of the Company.
(l) The Company shall deliver to each Purchaser, a certificate dated the Closing Date and signed by the Company’s Secretary attaching and chief financial officer, certifying to the truth and correctness of that (i) the Company’s Amended representations and Restated Certificate warranties of Incorporation, the Company contained in Section 3 hereof are true and correct in all material respects on the Closing Date and (ii) the Company’s Bylaws Company has performed and (iii) complied with all of the resolutions adopted agreements and conditions set forth or contemplated herein that are required to be performed or complied with by the Company’s Board of Directors Company on or before the Closing Date.
(m) Trading in connection with the transactions contemplated Common Stock shall not have been suspended by this Agreementthe SEC and trading in securities, generally, as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the those Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement respects on and as of the Closing Date (except for such representations with the same force and warranties which are effect as though made expressly on and as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period)the Closing Date.
(b) The Registration Rights Agreement shall have been executed and delivered by the Company.
(c) There shall have been no material adverse change (actual or threatened) in the assets, liabilities (contingent or other), affairs, operations, prospects or condition (financial or other) of the Company prior to the Closing Date; and the Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(mg) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, The Purchasers shall have been instituted before any courtreceived from Xxxxxxx Xxxx LLP, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered counsel to the Purchasers a certificate Company, an opinion addressed to it, dated the Closing Date and substantially in the form of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this AgreementEXHIBIT B hereto.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser the Purchasers to consummate the Closing and to purchase and pay for the Shares being Securities to be purchased by it pursuant to this Agreement them is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):Purchasers) of the following conditions precedent:
(a) The representations and warranties of the Issuers and SkyTerra contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of on the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true the Issuers and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) The Company SkyTerra shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed complied with by the Company Issuers and SkyTerra on or prior to the Closing Date.
(cb) Prior There shall not be any Law injunction, order or decree, enacted, enforced, promulgated, entered, issued or deemed applicable to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, hereby by any Governmental Authority prohibiting or seeking to prohibit, alter, prevent enjoining the transactions contemplated by this Agreement or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pendingTransaction Documents.
(ec) The purchase sale of the Securities by the Issuers and payment for the Shares by such Purchasers SkyTerra shall not be prohibited by any law or governmental order or regulationLaw. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency Governmental Authority or of or with any other person Person, including, without limitation all filings in accordance with Section 6 hereof, with respect to any the purchase and sale of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) Securities shall have been duly obtained or made and shall be in full force and effect; provided, however, that this shall not require all approvals needed to issue Voting Common Stock.
(fd) The Company Purchasers shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect received from Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to the issuance Issuers and SkyTerra, a xxxxxxxble xxx customary opinion for transactions of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of type contemplated herein addressed to the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial OfficerPurchasers, dated as of the Closing Date, which shall be reasonably satisfactory to Bingham McCutchen LLP, counsel to the Purchasers.
(e) MSX xxxxx xxxx xxxxvered to the Purchasers a certificate dated as of the Closing Date and signed by the secretary or other officer of MSV GP, certifying (i) that the copies of the Limited Partnership Agreement and resolutions of the Board approving this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby attached thereto, are all true, complete and correct and remain in full force and effect as of such date, and (ii) as to the fulfillment incumbency and specimen signature of each officer of MSV executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of MSV.
(f) MSV Finance Co. shall have delivered to the Purchasers a certificate dated as of the conditions specified Closing Date and signed by the secretary or another officer of MSV Finance Co., certifying (i) that the copies of the Certificate of Incorporation, the By-Laws and resolutions of the Board of Directors of MSV Finance Co. approving this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby attached thereto, are all true, complete and correct and remain in Sections 5.1(a)full force and effect as of such date, and (b)ii) as to the incumbency and specimen signature of each officer of MSV Finance Co. executing this Agreement, (c), (d), (e), (f), the Transaction Documents and any other document delivered in connection herewith on behalf of MSV Finance Co.
(g) Each of the Issuers shall have delivered to the Purchasers a certificate dated as of the Closing Date and signed by the Issuer's respective chief financial officer or chief executive officer, certifying that (i) each of the Issuers has performed and complied with all of the agreements and conditions set forth or contemplated herein that are required to be performed or complied with by the Issuers on or before such Closing Date and (m)ii) that the conditions set forth in Sections 7.1(a) and 7.1(b) have been met.
(h) SkyTerra shall have delivered to the Purchasers a certificate dated as of the Closing Date and signed by the secretary or another officer of SkyTerra, certifying (i) that the copies of the Certificate of Incorporation, the By-Laws and resolutions of the Board of Directors of SkyTerra approving this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby attached thereto, are all true, complete and correct and remain in full force and effect as of such date, (ii) that the representations and warranties made by SkyTerra in the Transaction Documents are true and correct as of such date; and (iii) as to the incumbency and specimen signature of each officer of SkyTerra executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of SkyTerra.
(i) SkyTerra shall have delivered to the Purchasers a certificate dated as of the Closing Date and signed by SkyTerra's chief financial officer or chief executive officer, certifying that (i) SkyTerra has performed and complied with all of the agreements and conditions set forth or contemplated herein that are required to be performed or complied with by the Issuers on or before such Closing Date and (ii) that the conditions set forth in Sections 7.1(a) and 7.1(b) have been met.
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment Each of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments Issuers and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company SkyTerra shall have delivered to the Purchasers a certificate of good standing for each of the Company Issuers from the Secretary of State of the State of Delaware, in each case dated within one week of the Closing.
(k) The Registration Rights Agreement, in substantially the form attached hereto as Exhibit B, shall have been executed and delivered to the Purchasers and SkyTerra.
(l) There shall be no Material Adverse Effect on the Closing Date.
(m) Each of the Issuers and SkyTerra will have provided reasonable cooperation in providing the Purchasers with all the information available to them reasonably requested by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors Purchasers in connection with the transactions contemplated by this Agreementwriting.
Appears in 1 contract
Samples: Securities Purchase Agreement (Harbinger Capital Partners Master Fund I, Ltd.)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser the Purchasers to consummate the Closing transactions to be consummated at the Closing, and to purchase and pay for the Shares being purchased by it pursuant to this Agreement Agreement, is subject to the satisfaction satisfaction, or due waiver in writing by the W Purchaser, of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations the Certificate of Designations shall have been filed with and warranties contained herein accepted by the Secretary of State of the State of Delaware;
(b) the Company shall have performed and complied in all material respects with all of the covenants and agreements contained in this Agreement that are qualified as required to “materiality” shall be true and correct, and performed or complied with by it on or prior to the Closing Date;
(c) the representations and warranties contained herein of the Company that are not so qualified contained in this Agreement shall be true and correct in all material respectsrespects (other than those representations and warranties contained in Sections 3.1, 3.2, 3.3, 3.4, 3.19 and 3.21 or other representations that are qualified by materiality or Material Adverse Effect, which, in each case, as of the date of this Agreement shall be true and correct in all respects) as of the Closing Date (except for such in the case of representations and warranties which that are made expressly as of a specified date or perioddate, which shall be true and correct or true and correct in all material respects, as herein above required, respects as of such specified date or perioddate).;
(bd) The Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel to the Company, shall have provided each of the Purchasers with its legal opinion, in substantially the form previously provided to the Purchasers;
(e) the Company shall have performed all covenants, agreements, obligations and conditions herein required delivered to be performed or observed each of the Purchasers a certified copy of the Certificate of Designations as certified by the Company on Delaware Secretary of State at or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by such Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.;
(f) The the Company shall have complied with all applicable requirements delivered to each of federal and state securities or “blue sky” laws with respect the Purchasers a certificate, in form acceptable to the issuance of the Shares, and each W Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock executed by the Secretary of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to (i) the fulfillment resolutions adopted by the Board in connection with the transactions contemplated hereby, (ii) the Certificate of Incorporation of the conditions specified Company and the Certificate of Designations and (iii) the bylaws of the Company, each as in Sections 5.1(a), (b), (c), (d), (e), (f), effect at the Closing
(g) and (m).
(j) The the Company shall have delivered to each Purchaser an opinion of counsel for the CompanyPurchasers a certificate, dated the Closing DateDate and executed by a duly authorized officer, to the effect that the conditions set forth in substantially the form of Exhibit B attached hereto.Sections 6.1(b) and (c) have been satisfied;
(kh) A stock certificate the NYSE shall have authorized, upon official notice of issuance, the listing of the Conversion Shares;
(i) no notice of delisting from the NYSE shall have been delivered received by the Company, registered in Company with respect to the name of such Purchaser or nominee as designated by such Purchaser in writing, representing Class A Common Stock; and
(j) the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment consummation of the purchase price therefor Closing shall not have been enjoined or prohibited by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments applicable Law and corporate proceedings in connection with no proceeding by any Governmental Entity, challenging the transactions contemplated by this Agreement to be consummated at and the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) Certificate of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, Designations shall have been instituted before any court, arbitrator initiated or governmental body, agency or official and shall be pendingthreatened.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by the Purchasers that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Registration Rights Agreement shall have been executed and delivered by the Company.
(c) The Company shall have performed in all covenants, agreements, material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (includinghereby, without limitation, other than for Regulation D and state blue sky filings with respect to the issuance sale of the Shares) , shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaserthe Purchasers, and such Purchaser the Purchasers shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser the Purchasers may have reasonably requested in connection with such transactions.
(mg) No proceeding challenging this Agreement or the transactions contemplated herebyA legal opinion of Xxxxxx X. Xxxxx , or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered counsel to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching , in form and certifying substance reasonably satisfactory to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this AgreementPurchasers.
Appears in 1 contract
Samples: Securities Purchase Agreement (Nano Proprietary Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares and the Warrants being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):) at or before Closing:
(a) The representations and warranties contained herein of the Company that are qualified as to “"materiality” " shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) The Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event or series of events shall have occurred which has had or reasonably could have a Material Adverse Effect shall have occurredon the Company or any Subsidiary.
(d) No suit, statute, rule, regulation, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares and the Warrants by such Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares, the Warrants and the Warrant Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “"blue sky” " laws with respect to the issuance of the SharesShares and the Warrants, and each Purchaser, at such Purchaser’s 's request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market the OTC Bulletin Board and (ii) shall not have been suspended from trading on The Nasdaq Capital Marketthe OTC Bulletin Board.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer Officer, President or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (mb).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(ki) A copy of the stock certificate shall have been delivered by the Company to each Purchaser representing the number of shares of Common Stock purchased by such Purchaser as set forth opposite such Purchaser’s name on Exhibit A (with the original stock certificate from the Company’s transfer agent delivered on the Business Day following the Closing), and (ii) one or more warrants to purchase the number of shares of Common Stock set forth opposite such Purchaser’s name on Exhibit A shall have been delivered by the Company to a Purchaser, and in each case shall be, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(lj) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(mk) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(nl) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s 's Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated 's Certificate of Incorporation, (ii) the Company’s Bylaws 's By-laws and (iii) the resolutions adopted by the Company’s 's Board of Directors in connection with the transactions contemplated by this Agreement.
(m) The Company shall have delivered to the Purchasers a certificate of the Secretary of State of the State of Delaware, dated as of a date within five days of the date of the Closing, with respect to the good standing of the Company.
(n) The Purchasers will have received an opinion on behalf of the Company, dated as of the date of the Closing, from Xxxxxxxxx Xxxxxxx, LLP, counsel to the Company, in a form satisfactory to the Purchasers and addressed to the Purchasers.
(o) The Purchasers shall have committed, pursuant to the terms and subject to the conditions contained in this Agreement, to purchase Shares for an aggregate amount of at least $5.0 million.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Registration Rights Agreement shall have been executed and delivered by the Company.
(c) The Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(cd) Prior to the Closing Date, no event The Purchasers shall have occurred which has had a Material Adverse Effect shall have occurredreceived an opinion of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, in form customary for the transaction contemplated hereby.
(de) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(ef) The purchase of and payment for the Shares by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permits, orders Consents and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation several obligations of each Purchaser to consummate the Closing transactions to be consummated at the Closing, and to purchase and pay for the Shares Bonds being purchased by it at the Closing pursuant to this Agreement is Agreement, are subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except it being understood and agreed by each Purchaser that for such representations purposes of this Section 8.1(a), in the case of any representation and warranties warranty of the Company contained herein (i) which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct only in all material respects or (ii) which is made as of a specific date, such representation and warranty need be true and correct in all material respects, as herein above required, only as of such specified date or periodspecific date).
(b) The Company shall have performed in all covenants, agreements, material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date, including without limitation pursuant to Sections 11.8 and 11.9 hereof.
(c) Prior to Each Purchaser shall have received a certificate, dated the Closing Date, no event shall signed by the Chief Executive Officer or the Chief Financial Officer of the Company, certifying on behalf of the Company that the conditions specified in the foregoing Sections 8.1(a) and (b) have occurred which has had a Material Adverse Effect shall have occurredbeen fulfilled.
(d) No suit, action, or other proceeding challenging this Agreement or The purchase of and payment for the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, Bonds by each Purchaser shall not have been instituted before prohibited or enjoined by any court, arbitrator law or governmental body, agency or official court order or regulation and no proceeding by any Governmental Authority seeking the same shall be pending.
(e) The purchase Each Purchaser shall have received from the Company’s U.S. counsel, Sxxxxxxx & Cxxxxxxx LLP, an opinion, dated the Closing Date, to the effect set forth in Exhibit K, and from the Company’s French counsel, Sxxxxxxx & Cxxxxxxx LLP, an opinion, dated the Closing Date, to the effect set forth in Exhibit L.
(f) Each of and payment for the Shares by such Purchasers shall not be prohibited by any law or governmental order or regulation. have received from the Company an executed letter agreement to the effect set forth in Exhibit M (the “Rights Letter”).
(g) All necessary consents, approvalspermits and waivers of Governmental Authorities (including competition authorities, licenses, Permits, orders but other than approval under the HSR Act needed to convert the Bonds to Shares) and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person third parties which are required to be obtained by the Company in connection with respect to any the consummation by it of the transactions contemplated hereby by this Agreement (including, without limitation, including the issuance of the SharesBoard Actions and any transactions related thereto) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company , and no such approval, consent, permit or waiver of any Governmental Authority or such other third party shall have complied with all applicable requirements of federal and state securities contain any term or “blue sky” laws with respect condition that is unduly burdensome to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Between the date of this Agreement and the Closing Date, there shall not have been executed and delivered by any changes, circumstances, conditions or events (other than changes, circumstances, conditions or events that arise as a result of (i) the CompanyCompany entering into this Agreement or (ii) the public announcement of the transactions contemplated hereunder) which, individually or in the aggregate, have had, or would reasonably be expected to have, a Material Adverse Effect.
(i) A certificate All corporate and other proceedings to be taken by the Company following the date hereof and on or prior to the Closing Date in connection with the transactions contemplated hereby (including the Board Actions and any transactions related thereto) and all documents incident thereto shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as taken and be reasonably satisfactory in form and substance to the fulfillment Purchasers and the Purchasers shall have received all such counterpart originals or certified or other copies of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m)such documents as they may reasonably request.
(j) The Company Resolutions shall have delivered been approved by the Required Shareholder Vote and, with the exception of the implementation of Share Buy-Back, the Warrant Offering and the Option Plans, the actions to each Purchaser an opinion be taken by the Company referred to therein and in the Board Actions shall have been implemented and given full effect by the Board of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached heretoDirectors.
(k) A stock certificate The Company shall have been delivered by entered into the Company, registered Consulting Agreement with an Affiliate of Silver Lake substantially in the name of such Purchaser or nominee form attached hereto as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.Exhibit H.
(l) All instruments and corporate proceedings in connection with the The transactions contemplated by this the Combination Agreement to be consummated at dated January 28, 2004 among the Closing shall be satisfactory Company, TCL International Holdings Limited, a company incorporated in form and substance to such Purchaserthe Cayman Islands with limited liability, and such Purchaser TCL Corporation, a joint stock company established under the laws of the People’s Republic of China (the “TCL JV”) shall have received copies (executed or certifiedbeen completed substantially in accordance with the terms set forth in the circular dated May 31, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions2004.
(m) No proceeding challenging this Agreement or The note d’opération relating to the transactions contemplated herebyadmission to trading of the Shares issuable upon conversion of the Bonds, or seeking to prohibit, alter, prevent or materially delay the Closingextent required, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pendingreceived a visa from the AMF.
(n) The Company shall have delivered to entered into a Participation and Registration Rights Agreement with the Purchasers a certificate in the form attached hereto as Exhibit I.
(o) The Company shall have paid in full the fee referred to in Section 11.9(a) hereof, as well as any expenses invoiced pursuant to Section 11.8 hereof.
(p) The Chairman of the Board of Directors of the Company executed by as of the Company’s Secretary attaching date hereof shall have remained in that position through, and certifying to shall be in that position on, the truth Closing Date and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors no change in connection with the transactions contemplated by this Agreementthat position shall have otherwise been publicly announced.
Appears in 1 contract
Samples: Bond Purchase Agreement (Thomson)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver conditions, any of which may be waived by such Purchaser)::
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company under this Agreement on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by such Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Sharesdelivered a Certificate, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock executed on behalf of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or its Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (mb).
(jd) The Company shall have delivered to each Purchaser an opinion a Certificate, executed on behalf of counsel for the CompanyCompany by its Secretary, its Chief Executive Officer or its Chief Financial Officer, dated as of the Closing Date, in substantially certifying the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered resolutions adopted by the Company, registered in the name Board of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment Directors of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with approving the transactions contemplated by this Agreement and the issuance of the Shares, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to be consummated at the Closing shall be satisfactory in form signatures and substance to such Purchaser, authority of persons signing this Agreement and such Purchaser shall have received copies (executed or certified, as may be appropriate) related documents on behalf of all documents which such Purchaser may have reasonably requested in connection with such transactionsthe Company.
(me) Since the date of execution of this Agreement, no event or series of events shall have occurred that has had or would reasonably be expected to have a Material Adverse Effect.
(f) No stop order or suspension of trading shall have been imposed by the NASDAQ Global Market, the SEC or any other governmental regulatory body with respect to public trading in the Common Stock, nor shall suspension by the NASDAQ Global Market or the SEC have been threatened, as of the Closing Date, in writing by the NASDAQ Global Market or the SEC.
(g) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(nh) The Company purchase of and payment for the Shares by the Purchaser shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby shall have delivered to been duly obtained or made and shall be in full force and effect (except for the Purchasers filing of a certificate of Form D and related blue sky law filings which will be timely filed after the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of Closing Date).
(i) The NASDAQ Global Market listing of additional shares application for the Company’s Amended Shares shall have been filed in accordance with the NASDAQ Rules.
(j) All instruments and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors corporate proceedings in connection with the transactions contemplated by this AgreementAgreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser; the Purchaser shall have received an opinion of legal counsel to the Company substantially in the form of Exhibit B attached hereto; such Purchaser shall have received counterpart originals, or certified or other copies of all documents, including without limitation, records of corporate or other proceedings, which it may have reasonably requested in connection therewith.
(k) The Purchasers shall have received a copy of the irrevocable instructions to the Company’s transfer agent instructing the transfer agent to deliver the Shares to the Purchasers in accordance with the amounts set forth in Exhibit A.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser the Purchasers to consummate the Closing and to purchase and pay for the Shares being Securities to be purchased by it pursuant to this Agreement them is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):Purchasers) of the following conditions precedent:
(a) The representations and warranties of the Issuers and SkyTerra contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of on the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true the Issuers and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) The Company SkyTerra shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed complied with by the Company Issuers and SkyTerra on or prior to the Closing Date.
(cb) Prior There shall not be any Law injunction, order or decree, enacted, enforced, promulgated, entered, issued or deemed applicable to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, hereby by any Governmental Authority prohibiting or seeking to prohibit, alter, prevent enjoining the transactions contemplated by this Agreement or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pendingTransaction Documents.
(ec) The purchase sale of the Securities by the Issuers and payment for the Shares by such Purchasers SkyTerra shall not be prohibited by any law or governmental order or regulationLaw. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency Governmental Authority or of or with any other person Person, including, without limitation all filings in accordance with Section 6 hereof, with respect to any the purchase and sale of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) Securities shall have been duly obtained or made and shall be in full force and effect; provided, however, that this shall not require all approvals needed to issue Voting Common Stock.
(fd) The Company Purchasers shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect received from Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, special counsel to the issuance Issuers and SkyTerra, a reasonable and customary opinion for transactions of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of type contemplated herein addressed to the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial OfficerPurchasers, dated as of the Closing Date, which shall be reasonably satisfactory to Bxxxxxx MxXxxxxxx LLP, counsel to the Purchasers.
(e) MSV shall have delivered to the Purchasers a certificate dated as of the Closing Date and signed by the secretary or other officer of MSV GP, certifying (i) that the copies of the Limited Partnership Agreement and resolutions of the Board approving this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby attached thereto, are all true, complete and correct and remain in full force and effect as of such date, and (ii) as to the fulfillment incumbency and specimen signature of each officer of MSV executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of MSV.
(f) MSV Finance Co. shall have delivered to the Purchasers a certificate dated as of the conditions specified Closing Date and signed by the secretary or another officer of MSV Finance Co., certifying (i) that the copies of the Certificate of Incorporation, the By-Laws and resolutions of the Board of Directors of MSV Finance Co. approving this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby attached thereto, are all true, complete and correct and remain in Sections 5.1(a)full force and effect as of such date, and (b)ii) as to the incumbency and specimen signature of each officer of MSV Finance Co. executing this Agreement, (c), (d), (e), (f), the Transaction Documents and any other document delivered in connection herewith on behalf of MSV Finance Co.
(g) Each of the Issuers shall have delivered to the Purchasers a certificate dated as of the Closing Date and signed by the Issuer’s respective chief financial officer or chief executive officer, certifying that (i) each of the Issuers has performed and complied with all of the agreements and conditions set forth or contemplated herein that are required to be performed or complied with by the Issuers on or before such Closing Date and (m)ii) that the conditions set forth in Sections 7.1(a) and 7.1(b) have been met.
(h) SkyTerra shall have delivered to the Purchasers a certificate dated as of the Closing Date and signed by the secretary or another officer of SkyTerra, certifying (i) that the copies of the Certificate of Incorporation, the By-Laws and resolutions of the Board of Directors of SkyTerra approving this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby attached thereto, are all true, complete and correct and remain in full force and effect as of such date, (ii) that the representations and warranties made by SkyTerra in the Transaction Documents are true and correct as of such date; and (iii) as to the incumbency and specimen signature of each officer of SkyTerra executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of SkyTerra.
(i) SkyTerra shall have delivered to the Purchasers a certificate dated as of the Closing Date and signed by SkyTerra’s chief financial officer or chief executive officer, certifying that (i) SkyTerra has performed and complied with all of the agreements and conditions set forth or contemplated herein that are required to be performed or complied with by the Issuers on or before such Closing Date and (ii) that the conditions set forth in Sections 7.1(a) and 7.1(b) have been met.
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment Each of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments Issuers and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company SkyTerra shall have delivered to the Purchasers a certificate of good standing for each of the Company Issuers from the Secretary of State of the State of Delaware, in each case dated within one week of the Closing.
(k) The Registration Rights Agreement, in substantially the form attached hereto as Exhibit B, shall have been executed and delivered to the Purchasers and SkyTerra.
(l) There shall be no Material Adverse Effect on the Closing Date.
(m) Each of the Issuers and SkyTerra will have provided reasonable cooperation in providing the Purchasers with all the information available to them reasonably requested by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors Purchasers in connection with the transactions contemplated by this Agreementwriting.
Appears in 1 contract
Samples: Securities Purchase Agreement (Skyterra Communications Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the those Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 6.1(a)).
(b) The Registration Rights Agreement shall have been executed and delivered by the Company.
(c) The Company shall not have been adversely affected in any material way prior to the Closing Date; and the Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(mg) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, The Purchasers shall have been instituted before any courtreceived from Xxxxxxx, arbitrator or governmental bodyXxxx & Xxxxx LLP, agency or official counsel to the Company, an opinion addressed to them, dated the Closing Date and shall be pendingsubstantially in the form of Exhibit C hereto.
(nh) The Company Each of the other Purchasers shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporationpurchased, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection accordance with the transactions contemplated by this Agreement, the number of shares of Common Stock that such other Purchaser has agreed to purchase pursuant to Section 2.1 hereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cubist Pharmaceuticals Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation several obligations of each Purchaser to consummate the Closing transactions to be consummated at the Closing, and to purchase and pay for the Shares Notes being purchased by it at the Closing pursuant to this Agreement is Agreement, are subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except it being understood and agreed by each Purchaser that for such representations purposes of this Section 6.1(a), in the case of any representation and warranties warranty of the Company contained herein (i) which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct only in all material respects or (ii) which is made as of a specific date, such representation and warranty need be true and correct in all material respects, as herein above required, only as of such specified date or periodspecific date).
(b) The Company shall have performed in all covenants, agreements, material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to Each Purchaser shall have received a certificate, dated the Closing Date, no event shall signed by the Chief Executive Officer or the Chief Financial Officer of the Company, certifying on behalf of the Company that the conditions specified in Sections 6.1(a), (b) and (i) have occurred which has had a Material Adverse Effect shall have occurredbeen fulfilled.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, The Company shall have been instituted before any court, arbitrator or governmental body, agency or official duly executed and shall be pendingdelivered to the Escrow Agent the Notes being purchased by the Purchasers at the Closing pursuant to this Agreement.
(e) The purchase of and payment for the Shares Notes by such Purchasers each Purchaser shall not be prohibited or enjoined by any law or governmental or court order or regulation. All necessary consents, approvals, licenses, Permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company and the Trustee shall have complied with all applicable requirements of federal executed and state securities or “blue sky” laws with respect to delivered the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereofIndenture.
(g) The Company shall have executed and delivered the Registration Rights Agreement in the form attached hereto as Exhibit D (the “Rights Agreement”). Table of Contents
(h) The Purchasers shall have received from Blank Rome, LLP, counsel to the Company, an opinion substantially in the form attached hereto as Exhibit E.
(i) The Company and the Escrow Agent shall have executed and delivered the Escrow Agreement.
(j) The Company shall have received confirmation that The Nasdaq Stock Market, Inc. has no objections to the Company’s Application for Additional Listing of Securities for the Common Stock to be issued upon conversion of the Company Notes.
(k) The Common Stock (i) shall be designated for quotation or listed on The Nasdaq Capital the Principal Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Companysuspended, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, either (A) in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered writing by the Company, registered in SEC or the name of such Purchaser Principal Market or nominee as designated (B) by such Purchaser in writing, representing falling below the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment minimum listing maintenance requirements of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writingPrincipal Market.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares Securities being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Registration Rights Agreement shall have been executed and delivered by the Company.
(c) The Company shall not have suffered any Material Adverse Effect prior to the Closing Date; and the Company shall have performed in all covenants, agreements, material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares Securities by such the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal obtained and state securities or “blue sky” laws with respect delivered to the issuance of Purchasers the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereofLock-up Agreements referred to in Section 3.26 hereof.
(g) The Common Stock Company shall have received executed copies of this Agreement from Purchasers with respect to the Company purchase of Securities hereunder for an aggregate purchase price of at least eight million dollars (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market$8,000,000).
(h) The Registration Rights Agreement Secretary or other officer of the Company shall have been executed delivered to the Purchasers a certificate certifying the Restated Articles, the Bylaws and delivered by resolutions of the Company’s Board of Directors approving the Operative Agreements and the transactions contemplated thereby.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser the Purchasers an opinion irrevocable letter of counsel for instruction to Mellon Investor Services, LLC, as the Company’s transfer agent, dated to issue certificates in the Closing Date, in substantially amounts and to the form of Purchasers listed on Exhibit B attached A hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(lj) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, the Purchasers shall have received an opinion of legal counsel to the Company substantially in the form of Exhibit C attached hereto, and such Purchaser shall have received copies (executed or certified, such certificates of the Company’s officers as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Targeted Genetics Corp /Wa/)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation several obligations of each Purchaser to consummate the Closing transactions to be consummated at the Closing, and to purchase and pay for the Shares Notes being purchased by it at the Closing pursuant to this Agreement is Agreement, are subject to the satisfaction of the following conditions precedent (or waiver provided that if the Sponsor Purchasers do not consummate the transactions contemplated by such Purchaserthe Swap Agreements as of the Closing, they shall be deemed to have assumed all of the obligations of the Bank Purchaser hereunder and the Bank Purchaser shall be deemed to have assigned all of its rights hereunder to the Sponsor Purchasers and shall be released from all obligations hereunder without payment of penalty to the Company):
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except it being understood and agreed by each Purchaser that for such representations purposes of this Section 6.1(a), in the case of any representation and warranties warranty of the Company contained herein (i) which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct only in all material respects or (ii) which is made as of a specific date, such representation and warranty need be true and correct in all material respects, as herein above required, only as of such specified date or periodspecific date).
(b) The Company shall have performed in all covenants, agreements, material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to Each Purchaser shall have received a certificate, dated the Closing Date, no event shall signed by the Chief Executive Officer or the Chief Financial Officer of the Company, certifying on behalf of the Company that the conditions specified in the foregoing Sections 6.1(a) and (b) have occurred which has had a Material Adverse Effect shall have occurredbeen fulfilled.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares Notes by such Purchasers each Purchaser shall not be prohibited or enjoined by any law or governmental or court order or regulation. All necessary consents, approvals, licenses, Permits, orders .
(e) The Company and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) Trustee shall have been duly obtained or made executed and shall be in full force and effectdelivered the Indentures.
(f) The Company shall have complied with all applicable requirements of federal executed and state securities or delivered the Registration Rights Agreement in the form attached hereto as Exhibit C (the “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereofRights Agreement”).
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement Purchasers shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by received from counsel to the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, substantially in substantially the form of attached hereto as Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.D.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation several obligations of each Purchaser to consummate the Closing transactions to be consummated at the Closing, and to purchase and pay for the Shares Notes being purchased by it at the Closing pursuant to this Agreement is Agreement, are subject to the satisfaction of the following conditions precedent (or waiver provided that if the KKR Purchaser does not consummate the transactions contemplated by such Purchaserthe Swap Agreements as of the Closing, it shall be deemed to have assumed all of the obligations of each Bank Purchaser hereunder and each Bank Purchaser shall be deemed to have assigned all of its rights hereunder to the KKR Purchaser and shall be released from all obligations hereunder without payment of penalty to the Company):
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except it being understood and agreed by each Purchaser that for such representations purposes of this Section 6.1(a), in the case of any representation and warranties warranty of the Company contained herein (i) which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or only to the extent that failure to be true and correct in all material respectswould have a Material Adverse Effect or (ii) which is made as of a specific date, as herein above required, such representation and warranty need be true and correct only as of such specified date or periodspecific date).
(b) The Company shall have performed in all covenants, agreements, material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to Each Purchaser shall have received a certificate, dated the Closing Date, no event shall signed by the Chief Executive Officer or the Chief Financial Officer of the Company, certifying on behalf of the Company that the conditions specified in the foregoing Sections 6.1(a) and (b) have occurred which has had a Material Adverse Effect shall have occurredbeen fulfilled.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares Notes by such Purchasers each Purchaser shall not be prohibited or enjoined by any law or governmental or court order or regulation. All necessary consents, approvals, licenses, Permits, orders .
(e) The Company and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) Trustee shall have been duly obtained or made executed and shall be in full force and effectdelivered the Indenture.
(f) The Company shall have complied with all applicable requirements of federal executed and state securities or delivered the Registration Rights Agreement in the form attached hereto as Exhibit C (the “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereofRegistration Rights Agreement”).
(g) The Common Stock of Purchasers shall have received from counsel to the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.Company, an opinion substantially in the form attached hereto as Exhibit D.
(h) The Registration Rights Termination and Settlement Agreement shall have been executed be in full force and delivered by the Companyeffect.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Note Purchase Agreement (Harman International Industries Inc /De/)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation several obligations of each Purchaser to consummate the Closing transactions to be consummated at the Closing, and to purchase and pay for the Shares Notes being purchased by it at the Closing pursuant to this Agreement is Agreement, are subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except it being understood and agreed by each Purchaser that for such representations purposes of this Section 6.1(a), in the case of any representation and warranties warranty of the Company contained herein (i) which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct only in all material respects or (ii) which is made as of a specific date, such representation and warranty need be true and correct in all material respects, as herein above required, only as of such specified date or periodspecific date).
(b) The Company shall have performed in all covenants, agreements, material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to Each Purchaser shall have received a certificate, dated the Closing Date, no event shall signed by the Chief Executive Officer or the Chief Financial Officer of the Company, certifying on behalf of the Company that the conditions specified in Sections 6.1(a), (b) and (i) have occurred which has had a Material Adverse Effect shall have occurredbeen fulfilled.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, The Company shall have been instituted before any court, arbitrator or governmental body, agency or official duly executed and shall be pendingdelivered to the Escrow Agent the Notes being purchased by the Purchasers at the Closing pursuant to this Agreement.
(e) The purchase of and payment for the Shares Notes by such Purchasers each Purchaser shall not be prohibited or enjoined by any law or governmental or court order or regulation. All necessary consents, approvals, licenses, Permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company and the Trustee shall have complied with all applicable requirements of federal executed and state securities or “blue sky” laws with respect to delivered the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereofIndenture.
(g) The Company shall have executed and delivered the Registration Rights Agreement in the form attached hereto as Exhibit D (the “Rights Agreement”).
(h) The Purchasers shall have received from Blank Rome, LLP, counsel to the Company, an opinion substantially in the form attached hereto as Exhibit E.
(i) The Company and the Escrow Agent shall have executed and delivered the Escrow Agreement.
(j) The Company shall have received confirmation that The Nasdaq Stock Market, Inc. has no objections to the Company’s Application for Additional Listing of Securities for the Common Stock to be issued upon conversion of the Company Notes.
(k) The Common Stock (i) shall be designated for quotation or listed on The Nasdaq Capital the Principal Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Companysuspended, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, either (A) in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered writing by the Company, registered in SEC or the name of such Purchaser Principal Market or nominee as designated (B) by such Purchaser in writing, representing falling below the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment minimum listing maintenance requirements of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writingPrincipal Market.
(l) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations it being understood and warranties agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which are made expressly as is not hereinabove qualified by application thereto of a specified date or periodmateriality standard, which shall such representation and warranty need be true and correct or true and correct only in all material respects, respects in order to satisfy as herein above required, as to such representation or warranty the condition precedent set forth in the foregoing provisions of such specified date or periodthis Section 5.1(a)).
(b) The Prior to the Closing Date, no Material Adverse Event shall have occurred and the Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(d) No suit, action, or other proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(ed) The purchase of and payment for the Shares by such Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(fe) The Company shall have complied with all applicable requirements of federal and state securities or “"blue sky” " laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s 's request, shall have been provided reasonable evidence thereof.
(f) The Shares shall have been approved for listing on The Nasdaq SmallCap Market, and each Purchaser, at such Purchaser's request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) Shares shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Marketincluded as Registrable Securities (as defined in the Registration Rights Agreement).
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, President or Chief Executive Officer or Chief Financial Officer, dated to the effect that: (i) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects on and as of the Closing Date, certifying as to the fulfillment though newly made on and as of that date (except for representations and warranties which speak as of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (gdate of the Agreement or as of another specific date or period covered thereby) and (m)ii) the Company has performed or complied with, in all material respects, all of its covenants contained in this Agreement and required to be performed or complied with on or before Closing Date.
(ji) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(kj) A single stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such the Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereofhereof and otherwise in the form of good delivery), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(lk) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Ep Medsystems Inc)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being and Warrants to be purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):) of the following conditions precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement respects on and as of the Closing Date (except for such representations with the same force and warranties which are effect as though made expressly on and as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) the Closing Date. The Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed complied with by the Company on or prior to the Closing Date.
(cb) Prior to the Closing Date, There shall have been no event shall have occurred or events which has had occurred since the date hereof that taken individually or in the aggregate could reasonably be expected to have a Material Adverse Effect shall have occurredEffect.
(dc) No suit, action, or other proceeding challenging this Agreement Agreement, the Warrants or the Registration Rights Agreement, or the transactions contemplated herebyhereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency Governmental Authority or official and or shall be pendingpending against or involving the Company or any of its Subsidiaries.
(ed) The purchase sale of and payment for the Shares by such and Warrant Shares and the issuance of the Warrants to the Purchasers shall not be prohibited by any law or law, rule, governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency Governmental Authority or of or with any other person Person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(e) The Purchasers shall have received from Xxxxxx & Xxxxxx LLP, outside counsel to the Company, an opinion addressed to such Purchasers, dated the Closing Date and substantially in the form of Exhibit B-1 hereto.
(f) The Company Purchasers shall have complied with all applicable requirements of federal received from Xxxxxxxx and state securities or “blue sky” laws with respect Wedge, outside Nevada counsel to the issuance Company, an opinion addressed to such Purchasers, dated the Closing Date and substantially in the form of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereofExhibit B-2 hereto.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered to the Purchasers by the Company.
(h) The Company shall have delivered to the Purchasers a certificate substantially in the form of Exhibit C hereto dated the Closing Date and signed by the secretary or another officer of the Company, certifying (i) that the copies of the certificate of incorporation (or other charter documents), the by-laws and resolutions of the Board approving this Agreement, the Warrants, the Registration Rights Agreement and the transactions contemplated hereby and thereby attached thereto, are all true, complete and correct and remain in full force and effect as of such date, and (ii) as to the incumbency and specimen signature of each officer of the Company executing this Agreement, the Warrants, the Registration Rights Agreement and any other document delivered in connection herewith on behalf of the Company.
(i) A certificate The Company shall have been delivered to the Purchasers a certificate substantially in the form of Exhibit D hereto dated the Closing Date and signed by the Company’s chief financial officer, signed certifying that (i) the representations and warranties of the Company contained in Section 3 hereof are true and correct in all respects on the Closing Date and (ii) the Company has performed and complied with all of the agreements and conditions set forth or contemplated herein that are required to be performed or complied with by its President, Chief Executive Officer the Company on or Chief Financial Officer, dated as of before the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion the Purchasers a certificate of counsel good standing for the CompanyCompany and each of its Subsidiaries issued by the Secretary of State of its applicable state of incorporation or organization, dated and, with respect to the Closing Date, in substantially Company a certificate of qualification to do business issued by the form Secretary of Exhibit B attached heretoState of the State of Texas.
(k) A stock certificate The Purchasers shall have been delivered by received a copy of the Company, registered duly executed Transfer Agent Instruction Letter in the name form of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writingExhibit E hereto.
(l) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement, the Warrants and the Registration Rights Agreement to be consummated at the Closing shall be reasonably satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such any Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Particle Drilling Technologies Inc/Nv)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being and Warrants to be purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):) of the following conditions precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement respects on and as of the Closing Date (except for such representations with the same force and warranties which are effect as though made expressly on and as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) the Closing Date. The Company shall have performed all covenants, agreements, obligations and conditions herein required to be performed or observed complied with by the Company on or prior to the Closing Date.
(cb) Prior to the Closing Date, There shall have been no event shall have occurred or events which has had occurred since the date hereof that taken individually or in the aggregate could reasonably be expected to have a Material Adverse Effect shall have occurredEffect.
(dc) No suit, action, or other proceeding challenging this Agreement or the Transaction Documents, or the transactions contemplated herebyhereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency Governmental Authority or official and or shall be pendingpending against or involving the Company or any Subsidiary.
(ed) The purchase sale of and payment for the Shares by such and Warrant Shares and the issuance of the Warrants to the Purchasers shall not be prohibited by any law or law, rule, governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency Governmental Authority or of or with any other person Person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(e) The Purchasers shall have received from Vxxxxx & Exxxxx LLP, outside counsel to the Company, an opinion addressed to such Purchasers, dated the Closing Date and substantially in the form of Exhibit C-1 hereto.
(f) The Company Purchasers shall have complied with all applicable requirements of federal received from Wxxxxxxx and state securities or “blue sky” laws with respect Wedge, outside Nevada counsel to the issuance Company, an opinion addressed to such Purchasers, dated the Closing Date and substantially in the form of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereofExhibit C-2 hereto.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered to the Purchasers by the Company.
(h) The Company shall have delivered to the Purchasers a certificate substantially in the form of Exhibit D hereto dated the Closing Date and signed by the secretary or another officer of the Company, certifying (i) that the copies of the Certificate of Incorporation, the By-Laws and resolutions of the Board approving this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby attached thereto, are all true, complete and correct and remain in full force and effect as of such date, and (ii) as to the incumbency and specimen signature of each officer of the Company executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of the Company.
(i) A certificate The Company shall have been delivered to the Purchasers a certificate substantially in the form of Exhibit E hereto dated the Closing Date and signed by the Company’s chief financial officer, signed certifying that (i) the representations and warranties of the Company contained in Section 3 hereof are true and correct in all respects on the Closing Date and (ii) the Company has performed and complied with all of the agreements and conditions set forth or contemplated herein that are required to be performed or complied with by its President, Chief Executive Officer the Company on or Chief Financial Officer, dated as of before the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) Such Purchaser shall have received from the Company an original stock certificate evidencing the purchase of the Shares and an original Warrant, in each case for the number of shares of Common Stock and the number of Warrant Shares, respectively, set forth opposite such Purchaser’s name on Schedule I hereto, and bearing the legends required to be imprinted thereon pursuant to Section 6.2 hereof.
(k) The Company shall have delivered to each Purchaser an opinion the Purchasers a certificate of counsel good standing for the CompanyCompany and each Subsidiary issued by the Secretary of State of its applicable state of incorporation or organization, dated and, with respect to the Closing Date, Company a certificate of qualification to do business issued by the Secretary of State of the State of Texas.
(l) The Purchasers shall have received a copy of the duly executed Transfer Agent Instruction Letter in substantially the form of Exhibit B attached F hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(lm) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement to be consummated at and the Closing Transaction Documents shall be reasonably satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such any Purchaser may have reasonably requested in connection with such transactions.
(m) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending.
(n) The Company shall have delivered to the Purchasers a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the Company’s Bylaws and (iii) the resolutions adopted by the Company’s Board of Directors in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Particle Drilling Technologies Inc/Nv)
Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate at the Closing and to the purchase and pay payment for the Shares being Notes and Warrants to be purchased by it pursuant to this Agreement such Purchaser is subject to the satisfaction of the following conditions precedent (or waiver by such Purchaser):) of the following conditions precedent:
(a) The representations and warranties contained herein of the Company that are qualified as to “materiality” shall be true and correct, and the representations and warranties contained herein of the Company that are not so qualified shall be true and correct in all material respects, in each case, on and as of the date of this Agreement and as of the Closing Date (except for such representations and warranties which are made expressly as of a specified date or period, which shall be true and correct or true and correct in all material respects, as herein above required, as of such specified date or period).
(b) hereof. The Company shall have performed or complied with all covenants, agreements, obligations and conditions herein required to be performed or observed complied with by the Company on or prior to the Closing Datedate hereof.
(c) Prior to the Closing Date, no event shall have occurred which has had a Material Adverse Effect shall have occurred.
(db) No suit, action, or other proceeding challenging this Agreement or the Transaction Documents, or the transactions contemplated herebyhereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and or shall be pendingpending against or involving the Company.
(ec) The purchase sale of the Notes (and payment for the Shares by such issuance of the Conversion Shares) and the issuance of the Warrants (and the Warrant Shares) to the Purchasers shall not be prohibited by any law or law, rule, governmental order or regulation. All necessary consents, approvals, licenses, Permitspermits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of or with any other person Person with respect to any of the transactions contemplated hereby (including, without limitation, the issuance of the Shares) shall have been duly obtained or made and shall be in full force and effect.
(f) The Company shall have complied with all applicable requirements of federal and state securities or “blue sky” laws with respect to the issuance of the Shares, and each Purchaser, at such Purchaser’s request, shall have been provided reasonable evidence thereof.
(g) The Common Stock of the Company (i) shall be designated for quotation or listed on The Nasdaq Capital Market and (ii) shall not have been suspended from trading on The Nasdaq Capital Market.
(h) The Registration Rights Agreement shall have been executed and delivered by the Company.
(i) A certificate shall have been delivered by the Company, signed by its President, Chief Executive Officer or Chief Financial Officer, dated as of the Closing Date, certifying as to the fulfillment of the conditions specified in Sections 5.1(a), (b), (c), (d), (e), (f), (g) and (m).
(j) The Company shall have delivered to each Purchaser an opinion of counsel for the Company, dated the Closing Date, in substantially the form of Exhibit B attached hereto.
(k) A stock certificate shall have been delivered by the Company, registered in the name of such Purchaser or nominee as designated by such Purchaser in writing, representing the number of shares of Common Stock purchased by such Purchaser, free of all restrictive and other legends (except as provided in Section 6.2 hereof), against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing.
(l) All instruments and corporate proceedings of the Company in connection with the transactions contemplated by this Agreement to be consummated at and the Closing Transaction Documents shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such any Purchaser may have reasonably requested in connection with such transactions.
(me) No proceeding challenging this Such Purchaser shall have received from Xxxxxxxx and Wedge, special counsel to the Company, an opinion addressed to such Purchaser, dated the Closing Date and substantially in the form of Exhibit E hereto.
(f) Such Purchaser shall have received from Xxxxxxx Xxxxx LLP, special counsel to the Company, an opinion addressed to such Purchaser, dated the Closing Date and substantially in the form of Exhibit F hereto.
(g) The Registration Rights Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official executed and shall be pendingdelivered to such Purchaser by the Company.
(nh) Such Purchaser shall have received from the Company an original Note and an original Warrant, in each case in the original principal amount and the number of Warrant Shares, respectively, set forth opposite such Purchaser's name on Exhibit A hereto.
(i) The Company shall have delivered delivered, in form and substance satisfactory to such Purchaser, a certificate dated the Closing Date and signed by the secretary or another appropriate executive officer of the Company, certifying (i) that attached copies of the Certificate of Incorporation, the By-Laws and resolutions of the Board approving this Agreement and the Transaction Documents are all true, complete and correct and remain in full force and effect as of the date hereof, and (ii) as to the Purchasers a certificate incumbency and specimen signature of each officer of the Company executed executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of the Company.
(j) The Company shall deliver to such Purchaser, a certificate in form and substance satisfactory to such Purchaser, dated the Closing Date and signed by the Company’s Secretary attaching and 's chief operating officer, certifying to the truth and correctness of that (i) the Company’s Amended representations and Restated Certificate warranties of Incorporation, the Company contained in Section 3 hereof are true and correct in all respects on the Closing Date and (ii) the Company’s Bylaws Company has performed and (iii) complied with all of the resolutions adopted agreements and conditions set forth or contemplated herein that are required to be performed or complied with by the Company’s Board of Directors in connection with Company on or before the transactions contemplated by this AgreementClosing Date.
Appears in 1 contract
Samples: Securities Purchase Agreement (Wilson Holdings, Inc.)
