Conditions to the Obligations of the Investor. The obligation of the Investor to effect the Closing shall be further subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the Closing Date of the following conditions: (a) the representations and warranties of the Company (i) set forth in Sections 3.01, 3.02, 3.03, 3.04, 3.16, 3.19 and 3.25 (the “Fundamental Warranties”) shall be true and correct (other than for de minimis inaccuracies) as of the date hereof and as of the Closing Date with the same effect as though made as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date); and (ii) set forth in this Agreement (other than those listed in the immediately preceding clause (i)), shall be true and correct in all material respects as of the date hereof and as of the Closing Date with the same effect as though made as of the date hereof and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date); (b) the Company shall have complied with or performed in all material respects its obligations required to be complied with or performed by it pursuant to this Agreement at or prior to the Closing; (c) from the date of this Agreement, no Material Adverse Effect shall have occurred; (d) The Company shall have duly attended to and completed all corporate procedures and other actions that are required in connection with the Transaction Documents and the Transactions, including without limitation: (i) the approval by the Board of the execution, delivery and performance by the Company of the Transaction Documents, the issuance of the Subscribed Shares at the Closing, and the other transactions contemplated by the Transaction Documents to which the Company is a party or which require approval by the Board; (ii) the authorization by the Board of a specified person or persons, on behalf of the Company, to sign and deliver the Transaction Documents to which it is a party; and (iii) the formation of the Business Line and the appointment by the Board of the Investor Designee as the Senior Vice President of the Company with the Business Line Authority, in each case by duly adopted Board resolutions and in accordance with Section 5.02(e); and the Company shall have provided the Investor with certified and complete copies of the duly executed Board resolutions of the Company approving, authorizing and effecting the foregoing matters. (e) the Investor shall have received a certificate, signed on behalf of the Company by a duly authorized executive officer thereof, certifying that the conditions set forth in Sections 6.03(a), (b), (c) and (d) have been satisfied.
Appears in 2 contracts
Samples: Investment Agreement (Airnet Technology Inc.), Investment Agreement (Airnet Technology Inc.)
Conditions to the Obligations of the Investor. The obligation obligations of the Investor to effect the Closing shall be further subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the Closing Date of the following conditions:
(a) The Acquisition and Debt Financing shall have been consummated or, substantially concurrently with Closing, shall be consummated, in all material respects in accordance with the terms of the Acquisition Agreement or Debt Commitment Letter, as applicable, without giving effect to any modifications, amendments, consents or waivers thereto that, taken together, are material and adverse to the Investor without the prior consent of the Investor (which consent shall not be unreasonably withheld, delayed or conditioned), it being understood that any change to the definition of Company Material Adverse Effect contained in the Acquisition Agreement shall be deemed to be material and adverse to the Investor;
(b) since the date of the Acquisition Agreement to the Effective Time (as defined in the Acquisition Agreement), there shall not have occurred any Effect (as defined in the Acquisition Agreement) that has had or is reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect (as defined in the Acquisition Agreement);
(c) the representations and warranties of the Company (i) set forth in Sections 3.01, 3.02, 3.03, 3.043.10, 3.163.11, 3.19 3.12 and 3.25 (the “Fundamental Warranties”) 3.14 shall be true and correct (other than for de minimis inaccuracies) as of the date hereof and in all material respects as of the Closing Date with the same effect as though made as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date); and (ii) set forth in this Agreement (other than those listed in the immediately preceding clause (i)), shall be true and correct in all material respects as of the date hereof and as of the Closing Date with the same effect as though made as of the date hereof and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date);
(bd) the Company shall have complied with or performed in all material respects its obligations required to be complied with or performed by it pursuant to this Agreement at or prior to the Closing;
(c) from the date of this Agreement, no Material Adverse Effect shall have occurred;
(d) The Company shall have duly attended to and completed all corporate procedures and other actions that are required in connection with the Transaction Documents and the Transactions, including without limitation:
(i) the approval by the Board of the execution, delivery and performance by the Company of the Transaction Documents, the issuance of the Subscribed Shares at the Closing, and the other transactions contemplated by the Transaction Documents to which the Company is a party or which require approval by the Board;
(ii) the authorization by the Board of a specified person or persons, on behalf of the Company, to sign and deliver the Transaction Documents to which it is a party; and
(iii) the formation of the Business Line and the appointment by the Board of the Investor Designee as the Senior Vice President of the Company with the Business Line Authority, in each case by duly adopted Board resolutions and in accordance with Section 5.02(e); and the Company shall have provided the Investor with certified and complete copies of the duly executed Board resolutions of the Company approving, authorizing and effecting the foregoing matters.
(e) the Investor shall have received a certificate, signed on behalf of the Company by a duly authorized an executive officer thereof, certifying that the conditions set forth in Sections Section 6.03(a), 6.03(b) (bto the Company’s Knowledge), (c6.03(c) and (d6.03(d) have been satisfied;
(f) the Company shall have duly adopted and filed with the Secretary of State of the State of Texas the Certificates of Designations, and certified copies thereof shall have been delivered to the Investor;
(g) only to the extent that the Initial Investor Director Designees have been designated at least ten (10) Business Days prior to the Closing, the Board shall have taken all actions necessary and appropriate to cause to be elected or appointed to the Board, effective immediately upon the Closing, the Initial Investor Director Designees;
(h) any shares of Common Stock issuable upon conversion of the Series A Preferred Stock (other than any additional shares of Series A Preferred Stock that may be issued as dividends in kind) at the Conversion Rates specified in the Certificates of Designations as in effect on the date hereof shall have been approved for listing on NASDAQ, subject to official notice of issuance; and
(i) the Company shall have issued and delivered to the Investor the Acquired Shares in certificated form, registered in, at the option of the Investor, (i) the name of the Investor or (ii) the name of a collateral agent for the lenders of a Permitted Loan, against payment in full by or on behalf of the Investor of the Purchase Price for the Acquired Shares.
Appears in 1 contract
Samples: Investment Agreement (Zix Corp)
Conditions to the Obligations of the Investor. The obligation of the Investor to effect the Closing shall be further subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the Closing Date of the following conditions:
(a) the representations and warranties of the Company (i) set forth in Sections Section 3.01, Section 3.02, Section 3.03, Section 3.04, Section 3.16, Section 3.19 and Section 3.25 (the “Fundamental Warranties”) shall be true and correct accurate (other than for de minimis inaccuracies) as of the date hereof and as of the Closing Date with the same effect as though made as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date); and (ii) set forth in this Agreement (other than those listed in the immediately preceding clause (i)), shall be true and correct accurate in all material respects as of the date hereof and as of the Closing Date with the same effect as though made as of the date hereof and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date);
(b) the Company shall have complied with or performed in all material respects its obligations required to be complied with or performed by it pursuant to this Agreement at or prior to the Closing;
(c) from the date of this Agreement, no Material Adverse Effect shall have occurred;
(d) The all consents, approvals, filings, licenses, permits or authorizations, declarations or registrations that are required to be obtained from, made to or given by, and all filings required to be made to, any Governmental Authority (including the SEC and NASDAQ) or any third party in connection with the execution and delivery of this Agreement and the other Transaction Documents, the performance of the obligations of the parties hereto and thereto hereunder and thereunder, and the consummation of the Transactions shall have been duly obtained, made or given and remain in full force and effect;
(e) NASDAQ shall have approved the continued listing of the Shares on the NASDAQ Capital Markets following the consummation of the Transactions (including without limitation the transfer to the Company of the Computer Servers), and the Company and the Investor shall have received a written confirmation from NASDAQ to such effect;
(f) each Resigning Person shall have duly executed a release to the Company and the Investor in form and substance satisfactory to the Investors and delivered the original copy of such releases to the Investor;
(g) the Company shall have delivered to the Investor the unaudited consolidated financial statements for each of the full quarters from and including the first quarter of 2021 through and including the last full quarter prior to the Closing (the “Last Full Quarter”) and each of the full month following such Last Full Quarter (including in each case consolidated balance sheet of the Group as of the last day of such quarterly or month period and consolidated statements of income and cash flows of the Group for such quarterly or month period) (the “Interim Financial Statements”), in each case in form and substance satisfactory to the Investor in its sole and absolute discretion;
(h) the Company shall have duly attended to and completed all corporate procedures and other actions that are required in connection with the Transaction Documents and the Transactions, including without limitation:
(i) the approval by the Board of the issuance of the Subscribed Securities at Closing, the execution, delivery and performance by the Company of this Agreement and the other Transaction Documents, Documents (to which the issuance of the Subscribed Shares at the ClosingCompany is a party), and the other transactions contemplated by the Transaction Documents to which the Company is a party or which require approval by the Board;
(ii) the authorization by the Board of a specified person or persons, on behalf of the Company, to sign and deliver the Transaction Documents to which it is a party;
(iii) all Resigning Persons shall have resigned effective as of the Closing, such persons as the Investor may nominate in writing as replacements shall have been duly appointed as the directors, officers and/or employees of the Company effective from and after the Closing and the Board and the shareholders of the Company shall have duly approved such resignations and appointments;
(iv) the Board shall have revoked the authority of all authorised signatories in relation to the bank accounts in the name of the Company and shall have appointed one or more persons as the Investor may designate in writing as replacements, and the Company shall have provided written evidence of the foregoing reasonably satisfactory to the Investor to the Investor; and
(iiiv) the formation of the Business Line and the appointment by the Board of the Investor Designee as the Senior Vice President of the Company with the Business Line Authority, in each case by duly adopted Board resolutions and in accordance with Section 5.02(e); and the Company shall have provided the Investor with certified and complete copies of the duly executed Board resolutions of the Company approving, authorizing and effecting the foregoing matters.; and
(ei) the Investor shall have received a certificate, signed on behalf of the Company by a duly authorized executive officer thereof, certifying that the conditions set forth in Sections 6.03(aSxxxxxx 0.00(x), (bx), (cx), (x), (x), (x), (x), (x) and (dh) have been satisfied.
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