Common use of Conditions to the Obligations of the Investors Clause in Contracts

Conditions to the Obligations of the Investors. The obligations of the Investors to consummate the transactions contemplated by this Agreement are subject to the satisfaction or written waiver by the Investors (to the extent such condition can be waived), at or prior to the Closing, of each of the following conditions: (a) The Holdings IPO, with minimum gross proceeds of $75,000,000, the net proceeds of which shall only be used as described in the draft prospectus for such offering previously provided to the Investors, shall have been consummated. (b) The representations and warranties of Holdings and the Company shall be true and correct in all material respects (except for any representations and warranties that are already qualified as to “materiality” or “Material Adverse Effect,” which representations and warranties shall be true and correct in all respects) at and as of the Closing Date as if made on the Closing Date, except for the representations and warranties of Holdings and the Company set forth in Sections 3.2, 3.3, and 3.7 and 3.9, which shall be true and correct in all respects at and as of the Closing Date as if made on the Closing Date. (c) Each of Holdings and the Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Holdings or the Company, as applicable, at or prior to the Closing. (d) Each Investor shall have received each of the closing deliverables listed in Section 2.2(b). (e) Holdings shall have duly filed the Preferred Stock COD with the Secretary of State of the State of Delaware and the Preferred Stock COD shall have become effective. (f) Holdings and the Company shall have paid or reimbursed the documented out-of-pocket fees and expenses of each Investor relating to the negotiation of this Agreement and each Related Agreement and the transactions contemplated hereby and thereby, including reasonably incurred legal fees and expenses. (g) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, would reasonable be expected to result in a Material Adverse Effect. (h) The Registration Statement, including the Prospectus, amendments and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in the Registrations Statement shall not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (i) The Junior Notes shall have converted into shares of Common Stock at a conversion price equal to eighty percent (80%) of the initial public offering price per share in the Holdings IPO and on terms no more favorable to the holders of the Junior Notes than is provided to the Investors with respect to the transactions contemplated by Section 2.1(a)(i). (j) The shares of Common Stock issued to the Investors pursuant to Section 2.1(a)(ii) shall have been registered for sale pursuant to the Registration Statement.

Appears in 3 contracts

Samples: Exchange Agreement (Kadmon Holdings, LLC), Waiver and Consent Agreement (Kadmon Holdings, LLC), Exchange Agreement (Kadmon Holdings, LLC)

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Conditions to the Obligations of the Investors. The obligations obligation of the Investors to consummate the transactions contemplated by this Agreement are purchase of the Securities at the Closing is subject to the satisfaction or written waiver by the Investors (fulfillment to the extent such condition can be waived)each Investor’s satisfaction, at on or prior to the ClosingClosing Date, of each of the following conditions:, any of which may be waived by an Investor (as to itself only): (a) The Holdings IPO, with minimum gross proceeds of $75,000,000, the net proceeds of which shall only be used as described in the draft prospectus for such offering previously provided to the Investors, shall have been consummated. (b) The representations and warranties of Holdings and made by the Company in Section 4 hereof qualified as to materiality shall be true and correct 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 made by the Company in Section 4 hereof not qualified as to materiality shall be true and correct in all material respects (at all times prior to and on the Closing Date, except for to the extent any representations and warranties that are already qualified such representation or warranty expressly speaks as to “materiality” of an earlier date, in which case such representation or “Material Adverse Effect,” which representations and warranties warranty shall be true and correct in all respects) at and material respects as of the Closing Date as if made on the Closing Date, except for the representations and warranties of Holdings and the such earlier date. The Company set forth in Sections 3.2, 3.3, and 3.7 and 3.9, which shall be true and correct have performed in all material respects at all obligations and as of the Closing Date as if made covenants herein required to be performed by it on or prior to the Closing Date. (cb) Each of Holdings and the The Company shall have performed obtained any and all consents, permits, approvals, registrations and waivers necessary or complied appropriate for consummation of the Conversion and the Offer, all of which shall be in all material respects with all obligations full force and covenants required by this Agreement to be performed or complied with by Holdings or the Company, as applicable, at or prior effect. (c) Abiomed shall have executed and delivered to the ClosingCompany the Abiomed Satisfaction and Release Documents. (d) Each Investor The Company and Abiomed shall have received each of the closing deliverables listed in completed all other transactions to be completed by them pursuant to Section 2.2(b)2 hereof. (e) Holdings The Company, Abiomed and each other Investor shall have duly filed executed and delivered the Preferred Stock COD with the Secretary of State of the State of Delaware and the Preferred Stock COD shall have become effectiveNew Registration Rights Agreement. (f) Holdings and the The Company shall have paid or reimbursed received an exemption from Nasdaq’s shareholder approval rules pursuant to Marketplace Rule 4350(i)(2) and shall have complied with all of the documented outrequirements set forth in such Rule, including the ten-of-pocket fees and expenses day notice period specified therein. The Company shall have filed with Nasdaq a Notification Form: Listing of each Investor relating Additional Shares for the inclusion of the Securities in the Nasdaq Capital Market, a copy of which shall have been provided to the negotiation of this Agreement and each Related Agreement and the transactions contemplated hereby and thereby, including reasonably incurred legal fees and expensesInvestors. (g) From No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice 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 proceeding shall have been instituted by any governmental authority, enjoining or preventing the date consummation of this Agreementthe transactions contemplated hereby or in the other Transaction Documents. (h) No stop order or suspension of trading shall have been imposed by Nasdaq, there the SEC or any other governmental or regulatory body with respect to public trading in the Common Stock. (i) There shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, would reasonable be expected to result in a Material Adverse Effect. (h) The Registration Statement, including the Prospectus, amendments and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in the Registrations Statement shall not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (i) The Junior Notes shall have converted into shares of Common Stock at a conversion price equal to eighty percent (80%) of the initial public offering price per share in the Holdings IPO and on terms no more favorable to the holders of the Junior Notes than is provided to the Investors with respect to the transactions contemplated by Section 2.1(a)(i). (j) The shares Company shall have received aggregate proceeds from the Offering of Common Stock issued not less than Thirty Million Dollars ($30,000,000) (including amounts outstanding under the Bridge Facility). (k) The Company shall have delivered a Certificate, executed on behalf of the Company 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), (c), (d), (f), (g), (h), (i) and (j) of this Section 6.2. (l) The Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer, 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 Continuance and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company. (m) The Investors shall have received an opinion from XxXxxxxx Xxxxxxxx LLP, the Company’s counsel, dated as of the Closing Date, in form and substance reasonably acceptable to the Investors pursuant to Section 2.1(a)(iiand addressing (i) shall have been registered for sale pursuant to due authorization, (ii) no conflicts with the Registration StatementCertificate of Continuance and Bylaws of the Company, (iii) consents required under and compliance with Canadian securities laws and the Certificate of Continuance and Bylaws of the Company and (iv) due authorization and issuance of the Securities, including that they are fully paid and non-assessable.

Appears in 2 contracts

Samples: Recapitalization Agreement (New Leaf Ventures II, L.P.), Recapitalization Agreement (Abiomed Inc)

Conditions to the Obligations of the Investors. The obligations obligation of each of the Investors to consummate purchase and pay for the transactions contemplated by this Agreement are Class B Securities at the Closing and the other obligations of each of the Investors hereunder required to be performed on the Closing Date shall be subject to the satisfaction (or written waiver by the Investors (to Required Investors) as of the extent such condition can be waived), at or prior to the Closing, of each Closing Date of the following conditions: (ai) The Holdings IPO, with minimum gross proceeds of $75,000,000, the net proceeds of which Master Disposition Agreement shall only be used as described in the draft prospectus for such offering previously provided full force and effect and all conditions to the Investors, obligations of the Company under the Master Disposition Agreement shall have been consummatedsatisfied or shall be satisfied concurrently with the Closing or, with the consent of the Company, waived pursuant to the terms therein, and the acquisition contemplated by the Master Disposition Agreement shall be consummated concurrently with the Closing. (bii) The Investors shall have received, as applicable, the closing deliveries described in Section 2(e) (other than Section 2(e)(i)) hereof and each agreement included therein is in full force and effect. (iii) The representations and warranties of Holdings and the Company Purchaser contained in this Agreement shall be have been true and correct in (disregarding all qualifications and exceptions contained therein relating to materiality, material respects adverse effect or similar qualifications) when made and as of the Closing Date as though made on and as of the Closing Date (except for any to the extent such representations and warranties that are already qualified as expressly relate to “materiality” or “Material Adverse Effect,” an earlier date, in which case such representations and warranties shall be true and correct in all respects) at on and as of the Closing Date as if made on the Closing Datesuch earlier date), except for where the representations and warranties of Holdings and the Company set forth in Sections 3.2, 3.3, and 3.7 and 3.9, which shall failure to be so true and correct in all respects at and as of the Closing Date as if made would not have a material adverse effect on the Closing DatePurchaser’s ability to consummate the transactions contemplated by this Agreement. (civ) Each of Holdings and the Company The Purchaser shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Holdings or the Company, as applicable, at or prior to Purchaser by the ClosingClosing Date. (dv) Each Investor There shall not be in effect any Governmental Order by a Governmental Authority of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby. (vi) Any applicable waiting period under the HSR Act shall have received expired or have been terminated and the Purchaser, each of the closing deliverables listed in Section 2.2(b). (e) Holdings shall have duly filed the Preferred Stock COD with the Secretary of State of the State of Delaware and the Preferred Stock COD shall have become effective. (f) Holdings Investors and the Company shall have paid or reimbursed obtained all necessary consents, waivers, authorizations and approvals of all Governmental Authorities required in connection with the documented out-of-pocket fees execution, delivery and expenses of each Investor relating to the negotiation performance of this Agreement and each Related Agreement and the transactions contemplated hereby and thereby, including reasonably incurred legal fees and expensesAncillary Documents or the consummation of the Transactions. (g) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, would reasonable be expected to result in a Material Adverse Effect. (hvii) The Registration StatementPurchaser shall be ready, including willing and able to purchase the Prospectus, amendments Class A Securities and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in the Registrations Statement shall not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (i) The Junior Notes shall have converted into shares of Common Stock at a conversion price equal to eighty percent (80%) of the initial public offering price per share in the Holdings IPO and on terms no more favorable to the holders of the Junior Notes than is provided to the Investors with respect to the transactions contemplated by Section 2.1(a)(i). (j) The shares of Common Stock issued to the Investors pursuant to Section 2.1(a)(ii) shall have been registered for sale perform its obligations pursuant to the Registration Statementterms of the Senior Loan Documents, concurrently with the purchase of the Class B Securities by the Investors.

Appears in 2 contracts

Samples: Investment Commitment Agreement, Investment Commitment Agreement (General Motors Co)

Conditions to the Obligations of the Investors. The obligations obligation of the Investors to consummate effect the transactions contemplated by this Agreement are Closing shall be further subject to the satisfaction (or written waiver by the Investors (to the extent such condition can be waived)waiver, at if permissible under applicable Law) on or prior to the Closing, of each Closing Date of the following conditions: (a) The Holdings IPO, with minimum gross proceeds of $75,000,000, the net proceeds of which shall only be used as described in the draft prospectus for such offering previously provided to the Investors, shall have been consummated. (b) The representations and warranties of Holdings and the Company (i) set forth in Sections 3.01, 3.02, 3.03, 3.04, 3.16, 3.18 and 3.19(e) (the “Fundamental Warranties”) shall be true and correct in all material respects (except other than for any representations and warranties that are already qualified de minimis inaccuracies) as to “materiality” or “Material Adverse Effect,” which representations and warranties shall be true and correct in all respects) at of the date hereof and as of the Closing Date with the same effect as if though made on as of the Closing DateDate (except to the extent expressly made as of an earlier date, except for the representations in which case as of such earlier date); and warranties of Holdings and the Company (ii) set forth in Sections 3.2this Agreement (other than those listed in the immediately preceding clause (i)), 3.3, and 3.7 and 3.9, which shall be true and correct in all respects at 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 if made on of an earlier date, in which case as of such earlier date), except, in the Closing Date. case of this clause (c) Each of Holdings and ii), where the Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement failure to be performed or complied with by Holdings or the Company, as applicable, at or prior to the Closing. (d) Each Investor shall have received each of the closing deliverables listed in Section 2.2(b). (e) Holdings shall have duly filed the Preferred Stock COD with the Secretary of State of the State of Delaware true and the Preferred Stock COD shall have become effective. (f) Holdings and the Company shall have paid or reimbursed the documented out-of-pocket fees and expenses of each Investor relating to the negotiation of this Agreement and each Related Agreement and the transactions contemplated hereby and thereby, including reasonably incurred legal fees and expenses. (g) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred thatcorrect would not, individually or in the aggregate, with or without the lapse of time, would reasonable reasonably be expected to result in have a Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, all qualifications or limitations as to “materiality”, “Material Adverse Effect.” and words of similar import set forth therein shall be disregarded); (hb) The Registration Statementthe 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 contemplated thereby, including without limitation the Prospectus, amendments and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in the Registrations Statement shall not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (i) The Junior approval by the Board of the execution, delivery and performance by the Company of the Transaction Documents, the issuance of the Notes at the Closing, the Preferred Shares upon the maturity of the Notes, and/or the Conversion Securities upon conversion of the Convertible Securities in accordance with their terms, and the other transactions contemplated by the Transaction Documents to which the Company is a party or which require approval by the Board, and (ii) 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; (e) [Reserved]; (f) the Investors shall have converted into shares of Common Stock at received a conversion price equal to eighty percent (80%) certificate, signed on behalf of the initial public offering price per share Company by an executive director thereof, certifying that the conditions set forth in Section 6.03(a), Section 6.03(b) and Section 6.03(c) have been satisfied; and (g) the Holdings IPO and on terms no more favorable to the holders Investors shall have received a legal opinion dated as of the Junior Notes than is provided Closing Date in a form reasonably acceptable to the Investors with respect from Xxxxxx and Xxxxxx (Hong Kong) LLP, the Cayman Islands legal adviser to the transactions contemplated by Section 2.1(a)(i)Company. (j) The shares of Common Stock issued to the Investors pursuant to Section 2.1(a)(ii) shall have been registered for sale pursuant to the Registration Statement.

Appears in 2 contracts

Samples: Investment Agreement (Blackstone Tactical Opportunities Management Associates (Cayman) - NQ L.P.), Investment Agreement (VNET Group, Inc.)

Conditions to the Obligations of the Investors. The obligations of the Investors to consummate the Investment and the other transactions contemplated by this Agreement hereby are subject to the satisfaction or written waiver of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by the Investors (to the extent such condition can be waived), it at or prior to the Closing, of each (ii) (A) the representations and warranties contained in Section 5.02(a), 5.02(b), 5.10(a), 5.10(b), 5.16(f) and 5.26(p) shall be true and correct in all respects as of the following conditions: date hereof and as of the Closing as if made at and as of such time; (aB) The Holdings IPO, with minimum gross proceeds of $75,000,000, the net proceeds of which shall only be used as described in the draft prospectus for such offering previously provided to the Investors, shall have been consummated. (b) The representations and warranties of Holdings and the Company contained in Section 5.01, 5.05, 5.06, 5.20, 5.21 and 5.25 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct in all material respects (except for any representations as of the date hereof and warranties that are already qualified as to “materiality” or “Material Adverse Effect,” which representations and warranties shall be true and correct in all respects) at and as of the Closing Date as if made on the Closing Date, except for the at and as of such time (other than such representations and warranties that by their terms address matters only as of Holdings and the Company set forth in Sections 3.2, 3.3, and 3.7 and 3.9another specified time, which shall be true and correct in all material respects only as of such time); and (C) the other representations and warranties of the Company contained in this Agreement or in any certificate or other writing delivered by the Company pursuant hereto (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true as of the date hereof and at and as of the Closing Date as if made on at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the Closing Date. (c) Each of Holdings and the Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Holdings or the Company, as applicable, at or prior to the Closing. (d) Each Investor shall have received each of the closing deliverables listed in Section 2.2(b). (e) Holdings shall have duly filed the Preferred Stock COD with the Secretary of State of the State of Delaware and the Preferred Stock COD shall have become effective. (f) Holdings and the Company shall have paid or reimbursed the documented out-of-pocket fees and expenses of each Investor relating to the negotiation case of this Agreement clause (C) only, only such exceptions as have not had and each Related Agreement and the transactions contemplated hereby and thereby, including would not reasonably incurred legal fees and expenses. (g) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred thatbe expected to have, individually or in the aggregate, with or without the lapse of time, would reasonable be expected to result in a Material Adverse Effect.; and (iii) Saratoga shall have received a certificate signed by an executive officer of the Company to the foregoing effect; (b) the Lender shall have delivered a payoff letter in a form reasonably satisfactory to the Company pursuant to which the Lender shall have agreed to terminate the Company Securitization Documents and release any and all Liens on the assets pledged under the Company Securitization Documents promptly following receipt of the amounts set forth in such payoff letter; (c) the Company shall have received the written resignations of Rxxxxx X. Xxxxxxxx, Xx. and Rxxxxxx X. Xxxxxx, to be effective as of the date of Closing, as members of the Board; (d) the Board shall have approved the election of, effective as of the date of Closing, the Saratoga Directors as members of the Board; (e) the Company shall have entered into the Replacement Management Agreements, effective as of the date of Closing; (f) the Company shall have entered into the License Agreement, effective as of the date of Closing; (g) the Company shall have entered into the Registration Rights Agreement, effective as of the date of Closing; (h) The Registration Statement, including the Prospectus, amendments Company shall have approved and supplements prepared an amendment to such Registration Statement its charter with the SDAT changing its name from “GSC Investment Corp.” to “Saratoga Investment Corp.” or Prospectus, including pre- and post-effective amendments, all exhibits theretoa derivation thereof that is acceptable to Saratoga, and shall have taken all material incorporated by reference or deemed actions (including those specified in paragraph 3 of the Termination and Release Agreement) to effect the name change of the Company’s Subsidiary and its Affiliates (including, without limitation, GSC Partners CDO GP III, L.P., GSC Investment Corp. CLO 2007, Ltd. and GSC Investment Corp. CLO 2007, Inc.), in each case to be incorporated by reference in filed or to become effective, as applicable, immediately following the Registrations Statement shall not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.Closing; and (i) The Junior Notes the Company’s BDC Election shall be in full force in effect, the Company shall not have converted into shares filed with the SEC any notice of Common Stock at a conversion price equal to eighty percent (80%) withdrawal of the initial public offering price per share in the Holdings IPO BDC Election, and on terms no more favorable to the holders order of the Junior Notes than is provided to the Investors with respect to the transactions contemplated by Section 2.1(a)(i). (j) The shares suspension or revocation of Common Stock issued to the Investors pursuant to Section 2.1(a)(ii) such election shall have been registered for sale pursuant issued or, to the Registration StatementCompany’s knowledge, proceedings therefor been initiated or threatened by the SEC.

Appears in 2 contracts

Samples: Stock Purchase Agreement (GSC Investment Corp.), Stock Purchase Agreement (GSC Investment Corp.)

Conditions to the Obligations of the Investors. The ---------------------------------------------- obligations of each of the Investors (except with respect to consummate clause (h), which shall not apply to the transactions contemplated by this Agreement are Senior Secured Debt Purchasers) to fulfill its obligations under Article II hereof shall be subject to the satisfaction or written waiver by prior to, unless otherwise indicated, the Investors (to the extent such condition can be waived), at or prior to the Senior Secured Debt Closing, of each the Debt Exchange Closing or the Convertible Debt Closing, as applicable, of the following conditions: (a) The Holdings IPO, with minimum gross proceeds Each of $75,000,000, the net proceeds of which shall only be used as described in the draft prospectus for such offering previously provided to the Investors, shall have been consummated. (b) The representations and warranties of Holdings and the Company contained in this Agreement shall be true and correct in all material respects (except for any representations and warranties that are already qualified as to “materiality” or “Material Adverse Effect,” which representations and warranties shall be true and correct in all respects) at of the date of this Agreement and as of the applicable Closing Date as if made on such Closing Date (or on the date when made in the case of any representation or warranty which specifically relates to an earlier date). (b) The Company shall have performed, in all material respects, each of its covenants and agreements contained in this Agreement to be performed prior to the applicable Closing; and each of the Investors shall have received a certificate signed by the Chief Executive Officer and the Chief Financial Officer of the Company, dated the applicable Closing Date, except for to the representations and warranties of Holdings and the Company set forth in Sections 3.2, 3.3, and 3.7 and 3.9, which shall be true and correct in all respects at and as of the Closing Date as if made on the Closing Dateforegoing effect. (c) Each of Holdings and the Company Investor shall have performed or complied received, in all material respects with all obligations form and covenants required by this Agreement substance reasonably satisfactory to be performed or complied with by Holdings or it, an opinion, addressed to the Investors and dated as of the applicable Closing Date, of Xxxxx, Xxxxx & Xxxxx, counsel for the Company, as applicable, at or prior with respect to the Closingmatters set forth in Exhibit F hereto. (d) No party to this Agreement (other than the relevant Investor) shall be in material breach of this Agreement unless such breach shall have been waived in writing by each of the other parties to this Agreement. (e) Each Investor shall have received each such other certificates, opinions, documents and instruments relating to the transactions contemplated hereby as may have been reasonably required by it and are customary for transactions of the closing deliverables listed this type, and all corporate and other proceedings, and all documents, instruments and other legal matters in Section 2.2(b). (e) Holdings shall have duly filed the Preferred Stock COD connection with the Secretary of State of the State of Delaware transactions contemplated by this Agreement, shall be reasonably satisfactory in form and the Preferred Stock COD shall have become effectivesubstance to it. (f) Holdings and With respect to each Closing (other than the Senior Secured Debt Closing), the Company shall have paid or reimbursed executed and delivered the documented out-of-pocket fees and expenses of each Investor relating Registration Rights Agreement to the negotiation Investors involved in such Closing who have not previously become signatory parties thereto for their execution and delivery as of this Agreement such Closing. (i) The indentures governing the Old Senior Notes and each Related Agreement the ROPES shall have been amended to permit the issuance of the Senior Secured Debt and the granting of the Liens securing the Senior Secured Debt contemplated by the terms thereof, and a supplemental indenture to the indenture pertaining to the Old Senior Notes and a supplemental indenture to the indenture pertaining to the ROPES evidencing such amendments, as applicable, shall have been duly executed by the Company, the trustee for the Old Senior Notes or the trustee for the ROPES, as applicable, and any other necessary signatories, and (ii) no other consents, including without limitation, consents with respect to the Old Junior Notes, shall be required to permit the transactions contemplated hereby and thereby, including reasonably incurred legal fees and expenses. (g) From the date of under this Agreement; provided, there however, that if this condition has been satisfied for purposes of the Senior Secured Debt Closing, this condition shall not be deemed to have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in been satisfied for purposes of the aggregate, with or without Debt Exchange Closing and the lapse of time, would reasonable be expected to result in a Material Adverse EffectConvertible Subordinated Debt Placement Closing. (h) The Registration StatementSenior Secured Debt Closing shall have occurred and there shall be no pending or, including to the Prospectus, amendments and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in the Registrations Statement shall not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light knowledge of the circumstances under which they were madeCompany, not misleadingthreatened action or proceeding (judicial or otherwise) to rescind, alter or modify such transaction. (i) The Junior Notes shall have converted into shares of Common Stock at a conversion price equal to eighty percent (80%) of the initial public offering price per share in the Holdings IPO and on terms no more favorable to the holders of the Junior Notes than is provided to the Investors with respect to the transactions contemplated by Section 2.1(a)(i). (j) The shares of Common Stock issued to the Investors pursuant to Section 2.1(a)(ii) shall have been registered for sale pursuant to the Registration Statement.

Appears in 1 contract

Samples: Master Recapitalization Agreement (Imperial Credit Industries Inc)

Conditions to the Obligations of the Investors. The obligations of the Investors to consummate effect the transactions contemplated by this Agreement are Closing shall be subject to the satisfaction or written waiver by the Investors (to the extent such condition can be waived), at or prior to the Closing, of each of the following conditions: (a) The Holdings IPO, with minimum gross proceeds of $75,000,000, the net proceeds of which 10b-5 Representation shall only be used as described true and correct in all respects (i) in the draft prospectus for such offering previously provided case of the Registration Statement and any post-effective amendments thereto, at the respective times referred to in Section 1.1(c), and in the case of the Prospectus, as of its date, and (ii) as of the Closing Date, except that in the case of this clause (ii) all references to any time period or date referred to in Section 1.1(c) shall be deemed to be references to the Investors, shall have been consummated. (b) The Closing Date. All other representations and warranties of Holdings and the Company contained in this Agreement (A) that are qualified by materiality, Material Adverse Effect or words of similar import, shall be true and correct as of the date hereof and as of the Closing (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date) and (B) that are not qualified by materiality, Material Adverse Effect or words of similar import, shall be true and correct in all material respects (except for as of the date hereof and as of the Closing(except to the extent that any representations such representation and warranties that are already qualified warranty expressly speaks as to “materiality” or “Material Adverse Effect,” of an earlier date, in which representations case such representation and warranties warranty shall be true and correct in all respects) at and material respects as of the Closing Date as if made on the Closing Date, except for the representations and warranties of Holdings and the Company set forth in Sections 3.2, 3.3, and 3.7 and 3.9, which shall be true and correct in all respects at and as of the Closing Date as if made on the Closing Datesuch earlier date). (cb) Each of Holdings and the The Company shall have performed or complied in all material respects with all of its obligations and covenants hereunder required by this Agreement to be performed or by it and complied with by Holdings or the Company, as applicable, covenants hereunder applicable to it in all material respects at or prior to the Closing. (dc) Each Investor shall have received each of the closing deliverables listed in Section 2.2(b). (e) Holdings shall have duly filed the Preferred Stock COD with the Secretary of State of the State of Delaware and the Preferred Stock COD shall have become effective. (f) Holdings and the Company shall have paid or reimbursed the documented out-of-pocket fees and expenses of each Investor relating to the negotiation of this Agreement and each Related Agreement and the transactions contemplated hereby and thereby, including reasonably incurred legal fees and expenses. (g) From Since the date of this Agreement, there shall not have occurred been any Material Adverse Effect, nor shall Effect or any event or events have occurred thatEffect that would, individually or in the aggregate, with have or without the lapse of time, would reasonable reasonably be expected to result in have a Material Adverse Effect. (hd) The Registration StatementInvestors shall have received a certificate, including the Prospectus, amendments and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated signed by reference or deemed to be incorporated by reference in the Registrations Statement shall not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light an officer of the circumstances under which they were madeCompany, not misleading. (i) The Junior Notes shall have converted into shares of Common Stock at a conversion price equal to eighty percent (80%) of the initial public offering price per share in the Holdings IPO and on terms no more favorable certifying as to the holders of the Junior Notes than is provided to the Investors with respect to the transactions contemplated by Section 2.1(a)(imatters set forth in Sections ‎5.3(a), ‎5.3(b) and ‎5.3(c). (j) The shares of Common Stock issued to the Investors pursuant to Section 2.1(a)(ii) shall have been registered for sale pursuant to the Registration Statement.

Appears in 1 contract

Samples: Backstop Investment Agreement (hopTo Inc.)

Conditions to the Obligations of the Investors. The obligations of the Investors to consummate effect the transactions contemplated by this Agreement Transactions are further subject to the satisfaction or written (to the extent permitted by Law) waiver by the Investors (to on or before the extent such condition can be waived), at or prior to the Closing, of each Closing Date of the following conditions: (a) The Holdings IPO, with minimum gross proceeds of $75,000,000, (i) the net proceeds of which shall only be used as described in the draft prospectus for such offering previously provided to the Investors, shall have been consummated. (b) The representations and warranties of Holdings and the Company set forth in Article III hereof (other than the Company Fundamental Representations) shall be true and correct in all material respects (except for without giving effect to any representations and warranties that are already qualified limitation or qualification as to “materiality” or “Material Adverse Effect,set forth in such representations and warranties) as of the Closing Date, with the same force and effect as if made on the Closing Date (except to the extent that any such representation or warranty speaks to an earlier date, in which case such representation or warranty shall so be true and correct as of such earlier date), except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, have a Material Adverse Effect, and (ii) the Company Fundamental Representations shall be true and correct in all respects as of the Closing Date with the same force and effect as if made on the Closing Date (except to the extent such representations and warranties expressly speak as of an earlier date, in which case such representations and warranties shall be true and correct in all respects) at and as of the Closing Date as if made on the Closing Date, except for the representations and warranties of Holdings and the Company set forth in Sections 3.2, 3.3, and 3.7 and 3.9, which shall be true and correct in all respects at and as of the Closing Date as if made on the Closing Date.such date); (cb) Each of Holdings and the Company shall have performed or complied in all material respects with all of its obligations and covenants hereunder required by this Agreement to be performed or complied with by Holdings or the Company, as applicable, it at or prior to the Closing.; (c) the Company shall have (i) duly executed and delivered to the Investors the Registration Rights Agreement, (ii) adopted and filed the Series A Certificate of Amendment with the Department of the Treasury of the State of New Jersey, and a certified copy thereof shall have been delivered to the Investors, and (iii) taken all actions necessary and appropriate to implement the provisions of Section 17 of the Series A Certificate of Amendment and to cause the Board (and each committee of the Board), effective as of the Closing, to be composed as set forth therein; (d) Each Investor any shares of Common Stock issuable upon conversion of the Series A Preferred Stock at the Series A Conversion Price (as defined in the Series A Certificate of Amendment) specified in the Series A Certificate of Amendment shall have received each been approved for listing on NASDAQ, subject to official notice of the closing deliverables listed in Section 2.2(b).issuance; (e) Holdings shall have duly filed the Preferred Stock COD with the Secretary of State of the State of Delaware and the Preferred Stock COD shall have become effective. (f) Holdings and the Company shall have paid or reimbursed Juniper for amounts owed pursuant to Section 5.05 substantially concurrently with the documented out-of-pocket fees and expenses of Closing; (f) each Investor relating shall have received from counsel to the negotiation of this Agreement and each Related Agreement and Company an opinion substantially in the transactions contemplated hereby and thereby, including reasonably incurred legal fees and expenses.form mutually agreed among the parties hereto; (g) From each Investor shall have received a certificate, signed by a duly authorized officer of the date of this AgreementCompany, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or certifying as to the matters set forth in the aggregate, with or without the lapse of time, would reasonable be expected to result in a Material Adverse Effect.Section 6.03(a) and Section 6.03(b); and (h) The Registration Statementeach Investor shall have received a certificate, including signed by the Prospectus, amendments and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in the Registrations Statement shall not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light Secretary of the circumstances under which they were made, not misleading. Company certifying (i) The Junior Notes shall have converted into shares of Common Stock at a conversion price equal to eighty percent the Company Charter Documents and (80%ii) the resolutions of the initial public offering price per share in Board of Directors approving the Holdings IPO Transaction Documents and on terms no more favorable to the holders of the Junior Notes than is provided to the Investors with respect to the transactions contemplated by Section 2.1(a)(i)Transactions. (j) The shares of Common Stock issued to the Investors pursuant to Section 2.1(a)(ii) shall have been registered for sale pursuant to the Registration Statement.

Appears in 1 contract

Samples: Securities Purchase Agreement (Lincoln Educational Services Corp)

Conditions to the Obligations of the Investors. The obligations of the Investors to consummate effect the transactions contemplated by this Agreement are Closing shall be further subject to the satisfaction or written or, to the extent permitted by applicable Law, waiver by the Investors (to the extent such condition can be waived), at on or prior to the Closing, of each Closing Date of the following conditions: (a) The Holdings IPO, with minimum gross proceeds no Company Material Adverse Effect shall have occurred since the date of $75,000,000, the net proceeds of which shall only be used as described in the draft prospectus for such offering previously provided this Agreement and prior to the Investors, shall have been consummated.Closing Date; (b) The the representations and warranties of Holdings and the Company in this Agreement shall be true and correct in all material respects (except for any representations and warranties that are already qualified as to “materiality” or “Material Adverse Effect,” which representations and warranties shall be true and correct in all respects) at on the date hereof and as of the Closing Date as if made on the Closing Date, except for the representations and warranties of Holdings and the Company set forth in Sections 3.2, 3.3, and 3.7 and 3.9, which shall be true and correct in all respects at and as of the Closing Date as if made on the Closing Date.; (c) Each of Holdings and the Company shall have performed or complied in all material respects with all of its obligations and covenants hereunder required by this Agreement to be performed or complied with by Holdings or the Company, as applicable, it at or prior to the Closing.; (d) Each Investor the Investors and Platou shall have received each a certificate, signed by an officer of the closing deliverables listed Company, certifying as to the matters set forth in Section 2.2(bSections 6.02(a) through 6.02(c).; (e) Holdings shall have duly filed no provision of any applicable Law and no permanent, preliminary or temporary judgment, injunction, order or decree that has the Preferred Stock COD with effect of preventing, prohibiting or making illegal the Secretary consummation of State any of the State of Delaware transactions contemplated by this Agreement shall be in effect at the Closing, and no action, claim or proceeding seeking any such judgment, injunction, order or decree shall be threatened in writing or pending at the Preferred Stock COD shall have become effective.Closing; (f) Holdings and the Company shall have paid or reimbursed duly executed and delivered the documented out-of-pocket fees and expenses of each Investor relating to the negotiation of this Agreement and each Related Agreement and the transactions contemplated hereby and thereby, including reasonably incurred legal fees and expenses.Escrow Agreement; (g) From the date of this Agreement, there Company and the Trustee shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in duly executed and delivered the aggregate, with or without Indenture and the lapse of time, would reasonable be expected to result in a Material Adverse Effect.Notes; and (h) The Registration Statement, including the Prospectus, amendments and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in Company’s Xxxxxxxx Islands counsel shall have issued a customary legal opinion that includes opinions regarding the Registrations Statement shall not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light valid issuance of the circumstances under which they were madeSecurities, not misleadingthe due authorization, execution and delivery of this Agreement by the Company and the absence of conflicts with the Company’s articles of incorporation and bylaws. (i) The Junior Notes shall have converted into shares of Common Stock at a conversion price equal to eighty percent (80%) of the initial public offering price per share in the Holdings IPO and on terms no more favorable to the holders of the Junior Notes than is provided to the Investors with respect to the transactions contemplated by Section 2.1(a)(i). (j) The shares of Common Stock issued to the Investors pursuant to Section 2.1(a)(ii) shall have been registered for sale pursuant to the Registration Statement.

Appears in 1 contract

Samples: Securities Purchase Agreement (DHT Holdings, Inc.)

Conditions to the Obligations of the Investors. The obligations obligation of ---------------------------------------------- the Investors Investor to consummate the transactions Transactions contemplated by this Agreement are subject to occur at the Closing shall be further conditioned upon the satisfaction or written waiver by the Investors (to the extent such condition can be waived)fulfillment, at or prior to the Closing, of each of the following conditions, unless waived by it at or prior to the Closing: (a) The Holdings IPO, with minimum gross proceeds of $75,000,000, the net proceeds of which shall only be used as described in the draft prospectus for such offering previously provided to the Investors, shall have been consummated. (b) The representations and warranties of Holdings and the Company contained herein shall be true and correct in all material respects (except for any representations and warranties that are already qualified as to materiality” or “Material Adverse Effect,” , which representations and warranties shall be true and correct correct), in all respects) each case when made and at and as of the Closing Date as if made on the Closing Date, (except for the representations and warranties made as of Holdings and the Company set forth in Sections 3.2, 3.3, and 3.7 and 3.9a specified date, which shall be true and correct in all respects as of such date) with the same force and effect as though made at and as of such time, except for inaccuracies in respect of the representations and warranties set forth in Section 5.3 (disregarding any qualifications as to materiality contained therein) that in the aggregate would not be reasonably expected to have a Material Adverse Effect on the Company or to materially adversely affect the Transactions. (b) The Company shall have performed in all material respects all agreements contained herein or required to be performed by it at or before the Closing. (c) An officer of the Company shall have delivered to the Investor a certificate, dated the Closing Date Date, certifying as if made on to the fulfillment of the conditions set forth in paragraphs (a) and (b) above. (d) The Investor shall have been furnished with an Opinion of Counsel to the Company dated the Closing Date. (ce) Each All corporate and other proceedings of Holdings the Company in connection with the Transactions, and all documents and instruments incident thereto, shall be reasonably satisfactory in form and substance to the Investor, the Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Holdings or the Company, as applicable, at or prior delivered to the Closing. (d) Each Investor all such receipts, documents, instruments and certificates, in form and substance reasonably satisfactory to the Investor, which the Investor shall have received each of the closing deliverables listed in Section 2.2(b). (e) Holdings shall have duly filed the Preferred Stock COD with the Secretary of State of the State of Delaware and the Preferred Stock COD shall have become effective. (f) Holdings and the Company shall have paid or reimbursed the documented out-of-pocket fees and expenses of each Investor relating to the negotiation of this Agreement and each Related Agreement and the transactions contemplated hereby and thereby, including reasonably incurred legal fees and expenses. (g) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, would reasonable be expected to result in a Material Adverse Effect. (h) The Registration Statement, including the Prospectus, amendments and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in the Registrations Statement shall not include any untrue statement of material fact or omit to state a material fact necessary requested in order to make consummate the statements therein, in light of the circumstances under which they were made, not misleadingTransactions. (i) The Junior Notes shall have converted into shares of Common Stock at a conversion price equal to eighty percent (80%) of the initial public offering price per share in the Holdings IPO and on terms no more favorable to the holders of the Junior Notes than is provided to the Investors with respect to the transactions contemplated by Section 2.1(a)(i). (j) The shares of Common Stock issued to the Investors pursuant to Section 2.1(a)(ii) shall have been registered for sale pursuant to the Registration Statement.

Appears in 1 contract

Samples: Preferred Stock Purchase Agreement (Telecorp PCS Inc)

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Conditions to the Obligations of the Investors. The obligations of the Investors to consummate effect the transactions contemplated by this Agreement are Closing shall be subject to the satisfaction or written waiver by the Investors (to the extent such condition can be waived), at or prior to the Closing, of each of the following conditions: (a) The Holdings IPO, with minimum gross proceeds of $75,000,000, the net proceeds of which 10b-5 Representation shall only be used as described true and correct in all respects (A) in the draft prospectus for such offering previously provided case of the Registration Statement and any post-effective amendments thereto, at the respective times referred to in Section 1.1(c), and in the case of the Prospectus, as of its date, and (B) as of the Closing Date, except that in the case of this clause (B) all references to any time period or date referred to in Section 1.1(c) shall be deemed to be references to the Investors, shall have been consummated. (b) The Closing Date. All other representations and warranties of Holdings and the Company contained in this Agreement (other than those set forth in Section 2.7) (i) that are qualified by materiality, Material Adverse Effect or words of similar import, shall be true and correct as of the date hereof and as of the Closing (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date) and (ii) that are not qualified by materiality, Material Adverse Effect or words of similar import, shall be true and correct in all material respects as of the date hereof and as of the Closing (except for to the extent that any representations such representation and warranties that are already qualified warranty expressly speaks as to “materiality” or “Material Adverse Effect,” of an earlier date, in which representations case such representation and warranties warranty shall be true and correct in all respects) at and material respects as of the Closing Date as if made on the Closing Date, except for the such earlier date). The representations and warranties of Holdings and the Company set forth in Sections 3.2, 3.3, and 3.7 and 3.9, which Section 2.7 shall be true and correct in all respects at as of the date hereof and as of the Closing Date as if made on the Closing DateClosing. (cb) Each of Holdings and the The Company shall have performed or all of its obligations hereunder required to be performed by it in all material respects, and complied with the covenants hereunder applicable to it in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Holdings or the Company, as applicable, at or prior to the Closing. (dc) Each Investor shall have received each of the closing deliverables listed in Section 2.2(b). (e) Holdings shall have duly filed the Preferred Stock COD with the Secretary of State of the State of Delaware and the Preferred Stock COD shall have become effective. (f) Holdings and the Company shall have paid or reimbursed the documented out-of-pocket fees and expenses of each Investor relating to the negotiation of this Agreement and each Related Agreement and the transactions contemplated hereby and thereby, including reasonably incurred legal fees and expenses. (g) From Since the date of this Agreement, there shall not have occurred been, and be continuing, any Material Adverse Effect, nor shall Effect or any event or events have occurred thatEffect that would, individually or in the aggregate, with have or without the lapse of time, would reasonable reasonably be expected to result in have a Material Adverse Effect. (hd) The Registration StatementInvestors shall have received a certificate, including the Prospectus, amendments and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated signed by reference or deemed to be incorporated by reference in the Registrations Statement shall not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light an officer of the circumstances under which they were madeCompany, not misleading. (i) The Junior Notes shall have converted into shares of Common Stock at a conversion price equal to eighty percent (80%) of the initial public offering price per share in the Holdings IPO and on terms no more favorable certifying as to the holders of the Junior Notes than is provided to the Investors with respect to the transactions contemplated by matters set forth in Section 2.1(a)(i5.3(a), (b) and (c). (j) The shares of Common Stock issued to the Investors pursuant to Section 2.1(a)(ii) shall have been registered for sale pursuant to the Registration Statement.

Appears in 1 contract

Samples: Investment Agreement (Vince Holding Corp.)

Conditions to the Obligations of the Investors. The obligations of the Investors to consummate effect the transactions contemplated by this Agreement are Closing shall be further subject to the satisfaction or written or, to the extent permitted by applicable Law, waiver by the Investors (to the extent such condition can be waived), at on or prior to the Closing, of each Closing Date of the following conditions: (a) The Holdings IPO, with minimum gross proceeds no Company Material Adverse Effect shall have occurred since the date of $75,000,000, the net proceeds of which shall only be used as described in the draft prospectus for such offering previously provided this Agreement and prior to the Investors, shall have been consummated.Closing Date; (b) The the representations and warranties of Holdings and the Company in this Agreement shall be true and correct in all material respects (except for any representations and warranties that are already qualified as to “materiality” or “Material Adverse Effect,” which representations and warranties shall be true and correct in all respects) at on the date hereof and as of the Closing Date as if made on the Closing Date, except for the representations and warranties of Holdings and the Company set forth in Sections 3.2, 3.3, and 3.7 and 3.9, which shall be true and correct in all respects at and as of the Closing Date as if made on the Closing Date.; (c) Each of Holdings and the Company shall have performed or complied in all material respects with all of its obligations and covenants hereunder required by this Agreement to be performed or complied with by Holdings or the Company, as applicable, it at or prior to the Closing.; (d) Each Investor the Investors and Platou shall have received each a certificate, signed by an officer of the closing deliverables listed Company, certifying as to the matters set forth in Section 2.2(bSections 6.02(a) through 6.02(c).; (e) Holdings shall have duly filed no provision of any applicable Law and no permanent, preliminary or temporary judgment, injunction, order or decree that has the Preferred Stock COD with effect of preventing, prohibiting or making illegal the Secretary consummation of State any of the State of Delaware transactions contemplated by this Agreement shall be in effect at the Closing, and no action, claim or proceeding seeking any such judgment, injunction, order or decree shall be threatened in writing or pending at the Preferred Stock COD shall have become effective.Closing; (f) Holdings and the Company shall have paid or reimbursed duly adopted and caused to be filed with the documented out-of-pocket fees and expenses Registrar of each Investor relating to Companies of the negotiation Republic of this Agreement and each Related Agreement and the transactions contemplated hereby and thereby, including reasonably incurred legal fees and expenses.Mxxxxxxx Islands the Certificate of Designation; (g) From the date of this Agreement, there Company shall not have occurred any Material Adverse Effect, nor delivered to the Transfer Agent certificates representing the Purchased Shares and shall any event or events have occurred that, individually or in cause the aggregate, with or without Transfer Agent to deliver such certificates to the lapse of time, would reasonable be expected to result in a Material Adverse Effect.Investors; (h) The Registration Statement, including the Prospectus, amendments and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed shares of Common Stock to be incorporated by reference in issued on the Registrations Statement Closing Date shall not include any untrue statement of material fact or omit to state a material fact necessary in order to make have been approved for listing on the statements therein, in light of the circumstances under which they were made, not misleading.NYSE; (i) The Junior Notes the Company shall have converted into shares of Common Stock at a conversion price equal to eighty percent (80%) of duly executed and delivered the initial public offering price per share in the Holdings IPO and on terms no more favorable to the holders of the Junior Notes than is provided to the Investors with respect to the transactions contemplated by Section 2.1(a)(i).Escrow Agreement; and (j) The shares of Common Stock issued to the Investors pursuant to Section 2.1(a)(ii) Company’s Mxxxxxxx Islands counsel shall have been registered for sale pursuant to issued a customary legal opinion that includes opinions regarding the Registration Statementvalid issuance of the Purchased Shares, the due authorization, execution and delivery of this Agreement by the Company and the absence of conflicts with the Company’s articles of incorporation and bylaws.

Appears in 1 contract

Samples: Stock Purchase Agreement (DHT Holdings, Inc.)

Conditions to the Obligations of the Investors. The obligations of the Investors to consummate effect the transactions contemplated by this Agreement are Closing shall be subject to the satisfaction or written waiver by the Investors (to the extent such condition can be waived), at or prior to the Closing, of each of the following conditions: (a) The Holdings IPO, with minimum gross proceeds of $75,000,000, the net proceeds of which 10b-5 Representation shall only be used as described true and correct in all respects (A) in the draft prospectus for such offering previously provided case of the Registration Statement and any post-effective amendments thereto, at the respective times referred to in Section 1.1(c), and in the case of the Prospectus, as of its date, and (B) as of the Closing Date, except that in the case of this clause (B) all references to any time period or date referred to in Section 1.1(c) shall be deemed to be references to the Investors, shall have been consummated. (b) The Closing Date. All other representations and warranties of Holdings and the Company contained in this Agreement (other than those set forth in Section 2.7) (i) that are qualified by materiality, Material Adverse Effect or words of similar import, shall be true and correct as of the date hereof and as of the Closing (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date) and (ii) that are not qualified by materiality, Material Adverse Effect or words of similar import, shall be true and correct in all material respects as of the date hereof and as of the Closing (except for to the extent that any representations such representation and warranties that are already qualified warranty expressly speaks as to “materiality” or “Material Adverse Effect,” of an earlier date, in which representations case such representation and warranties warranty shall be true and correct in all respects) at and material respects as of the Closing Date as if made on the Closing Date, except for the such earlier date). The representations and warranties of Holdings and the Company set forth in Sections 3.2, 3.3, and 3.7 and 3.9, which Section 2.7 shall be true and correct in all respects at as of the date hereof and as of the Closing Date as if made on the Closing DateClosing. (cb) Each of Holdings and the The Company shall have performed or complied in all material respects with all of its obligations and covenants hereunder required by this Agreement to be performed or by it, and complied with by Holdings or the Company, as applicable, covenants hereunder applicable to it in all material respects. at or prior to the Closing. (dc) Each Investor shall have received each of the closing deliverables listed in Section 2.2(b). (e) Holdings shall have duly filed the Preferred Stock COD with the Secretary of State of the State of Delaware and the Preferred Stock COD shall have become effective. (f) Holdings and the Company shall have paid or reimbursed the documented out-of-pocket fees and expenses of each Investor relating to the negotiation of this Agreement and each Related Agreement and the transactions contemplated hereby and thereby, including reasonably incurred legal fees and expenses. (g) From Since the date of this Agreement, there shall not have occurred been any Material Adverse Effect, nor shall Effect or any event or events have occurred thatEffect that would, individually or in the aggregate, with have or without the lapse of time, would reasonable reasonably be expected to result in have a Material Adverse Effect. (hd) The Registration StatementInvestors shall have received a certificate, including the Prospectus, amendments and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated signed by reference or deemed to be incorporated by reference in the Registrations Statement shall not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light an officer of the circumstances under which they were madeCompany, not misleading. (i) The Junior Notes shall have converted into shares of Common Stock at a conversion price equal to eighty percent (80%) of the initial public offering price per share in the Holdings IPO and on terms no more favorable certifying as to the holders of the Junior Notes than is provided to the Investors with respect to the transactions contemplated by matters set forth in Section 2.1(a)(i5.3(a), (b) and (c). (j) The shares of Common Stock issued to the Investors pursuant to Section 2.1(a)(ii) shall have been registered for sale pursuant to the Registration Statement.

Appears in 1 contract

Samples: Investment Agreement (Vince Holding Corp.)

Conditions to the Obligations of the Investors. The obligations of Investors' obligation to purchase and pay for the Shares to be delivered to the Investors to consummate at the transactions contemplated by this Agreement Closing are subject to the satisfaction or written waiver by the Investors (to the extent such condition can be waived), at or prior to the Closing, of each of the following conditionsconditions on or before the Closing Date: (ai) The Holdings IPO, with minimum gross proceeds of $75,000,000, Company shall have delivered certificates evidencing the net proceeds of which Shares; (ii) The Company shall only be used as described in the draft prospectus for such offering previously provided have delivered to the Investors, shall have been consummatedInvestors a certificate issued by the Secretary of State of the State of Delaware that the Company is in good standing and has paid all of its franchise taxes and reflecting the filing of the Existing Certificate of Incorporation and the Amendment. (biii) The representations A certificate of the Secretary of the Company certifying the resolutions adopted by (x) the Company's Board of Directors approving the transactions contemplated hereby and warranties of Holdings authorizing, declaring advisable and recommending to the Company's stockholders the Amendment and the Company shall be true and correct in all material respects (except for any representations and warranties that are already qualified as other amendments to “materiality” or “Material Adverse Effect,” which representations and warranties shall be true and correct in all respects) at and as of the Closing Date as if made on the Closing Date, except for the representations and warranties of Holdings and the Company set forth in Sections 3.2, 3.3, and 3.7 and 3.9, which shall be true and correct in all respects at and as of the Closing Date as if made on the Closing Date. (c) Each of Holdings and the Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Holdings or the Company's Existing Certificate of Incorporation authorized on April 9, as applicable, at or prior to 2004 by the Closing. (d) Each Investor shall have received each Company's Board of the closing deliverables listed in Section 2.2(b). (e) Holdings shall have duly filed the Preferred Stock COD Directors for filing with the Secretary of State of the State of Delaware (subject to stockholder authorization), and (y) the Preferred Stock COD shall have become effectiveCompany's stockholders authorizing the Amendment and such other amendments to the Company's Existing Certificate of Incorporation. (fiv) Holdings The representations and warranties of the Company set forth in Section 4 shall have paid or reimbursed the documented out-of-pocket fees and expenses of each Investor relating to the negotiation of this Agreement and each Related Agreement and the transactions contemplated hereby and thereby, including reasonably incurred legal fees and expenses. (g) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or be true in the aggregate, with or without the lapse of time, would reasonable be expected to result in a Material Adverse Effect. (h) The Registration Statement, including the Prospectus, amendments and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in the Registrations Statement shall not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light respects at and as of the circumstances under which they were madeClosing Date, not misleading. (i) The Junior Notes shall have converted into shares of Common Stock at a conversion price equal to eighty percent (80%) of the initial public offering price per share in the Holdings IPO and on terms no more favorable to the holders of the Junior Notes than is provided to the Investors with respect after giving effect to the transactions contemplated by Section 2.1(a)(i).this Agreement, as if made on and as of such date; (jv) The shares Company shall have performed and complied in all material respects with all agreements, covenants and conditions contained in this Agreement which are required to be performed or complied with by the Company on or before the Closing Date; (vi) The Company shall have authorized, by all requisite corporate action of Common Stock issued its Board of Directors and stockholders the filing of, and there shall have been filed with the Secretary of State of the State of Delaware, the Amendment; (vii) Russell Banks and Palisade shall have cancelled and capitalized the Xxxxxxx'x xxxigation to pay all principal ($50,000 to each) with respect to loans made by them to the Investors pursuant Company as follows: in the case of Russell Banks, $8,000 on or about March 15, 2002 and $42,000 on or axxxx Xxxx 00, 2003 and, in the case of Palisade, $25,000 on each of approximately September 15, 2002 and April 15, 2003, and all accrued interest on such obligations; (viii) Jenkens & Gilchrist Parker Chapin LLP shall agree to Section 2.1(a)(iidefer the Company's obligxxxxxx xx xxx xxxxxxxxxess owed it for services rendered prior to January 1, 2004 (an aggregate of approximately $61,000) and in connection with the transactions contemplated in this Agreement on a non-interest basis until the earlier of December 31, 2010, the liquidation of the Company or the Company's merger with, or sale of substantially all of its assets to, or another change in control transaction with, another entity that is approved by the Company's Board of Directors (other than the change in control contemplated by this Agreement), following which transaction or series of transactions the stockholders of the Company immediately preceding the effectiveness of the first of such transactions do not own more than 50% of the outstanding voting power of the resulting entity immediately following the effectiveness of the last of such transactions; (ix) All outstanding stock options granted by the Company to purchase capital stock of the Company (including, without limitation, the stock options held by Marc J. Hanover) shall have been registered for terminated; (x) The Xxxxxxxx Xxxxxg Arrangement shall have been terminated; and (xi) No provision of any applicable law or regulation, and no judgment, injunction or decree shall prohibit the consummation of the sale pursuant to and purchase of the Registration StatementShares contemplated hereby.

Appears in 1 contract

Samples: Stock Purchase Agreement (GVC Venture Corp /De/)

Conditions to the Obligations of the Investors. The obligations obligation of the Investors to consummate the transactions contemplated by this Agreement are purchase of the Securities at the Closing is subject to the satisfaction or written waiver by the Investors (fulfillment to the extent such condition can be waived)each Investor's satisfaction, at on or prior to the ClosingClosing Date, of each of the following conditions:, any of which may be waived by an Investor (as to itself only): (a) The Holdings IPO, with minimum gross proceeds of $75,000,000, the net proceeds of which shall only be used as described in the draft prospectus for such offering previously provided to the Investors, shall have been consummated. (b) The representations and warranties of Holdings and made by the Company in Section 4 hereof qualified as to materiality shall be true and correct 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 made by the Company in Section 4 hereof not qualified as to materiality shall be true and correct in all material respects (at all times prior to and on the Closing Date, except for to the extent any representations and warranties that are already qualified such representation or warranty expressly speaks as to “materiality” of an earlier date, in which case such representation or “Material Adverse Effect,” which representations and warranties warranty shall be true and correct in all respects) at and material respects as of the Closing Date as if made on the Closing Date, except for the representations and warranties of Holdings and the such earlier date. The Company set forth in Sections 3.2, 3.3, and 3.7 and 3.9, which shall be true and correct have performed in all material respects at all obligations and as of the Closing Date as if made covenants herein required to be performed by it on or prior to the Closing Date. (cb) Each of Holdings and the The Company shall have performed obtained any and all consents, permits, approvals, registrations and waivers necessary or complied appropriate for consummation of the Conversion and the Offer, all of which shall be in all material respects with all obligations full force and covenants required by this Agreement to be performed or complied with by Holdings or the Company, as applicable, at or prior effect. (c) Abiomed shall have executed and delivered to the ClosingCompany the Abiomed Satisfaction and Release Documents. (d) Each Investor The Company and Abiomed shall have received each of the closing deliverables listed in completed all other transactions to be completed by them pursuant to Section 2.2(b)2 hereof. (e) Holdings The Company, Abiomed and each other Investor shall have duly filed executed and delivered the Preferred Stock COD with the Secretary of State of the State of Delaware and the Preferred Stock COD shall have become effectiveNew Registration Rights Agreement. (f) Holdings and the The Company shall have paid or reimbursed received an exemption from Nasdaq's shareholder approval rules pursuant to Marketplace Rule 4350(i)(2) and shall have complied with all of the documented outrequirements set forth in such Rule, including the ten-of-pocket fees and expenses day notice period specified therein. The Company shall have filed with Nasdaq a Notification Form: Listing of each Investor relating Additional Shares for the inclusion of the Securities in the Nasdaq Capital Market, a copy of which shall have been provided to the negotiation of this Agreement and each Related Agreement and the transactions contemplated hereby and thereby, including reasonably incurred legal fees and expensesInvestors. (g) From No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice 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 proceeding shall have been instituted by any governmental authority, enjoining or preventing the date consummation of this Agreementthe transactions contemplated hereby or in the other Transaction Documents. (h) No stop order or suspension of trading shall have been imposed by Nasdaq, there the SEC or any other governmental or regulatory body with respect to public trading in the Common Stock. (i) There shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, would reasonable be expected to result in a Material Adverse Effect. (h) The Registration Statement, including the Prospectus, amendments and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in the Registrations Statement shall not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (i) The Junior Notes shall have converted into shares of Common Stock at a conversion price equal to eighty percent (80%) of the initial public offering price per share in the Holdings IPO and on terms no more favorable to the holders of the Junior Notes than is provided to the Investors with respect to the transactions contemplated by Section 2.1(a)(i). (j) The shares Company shall have received aggregate proceeds from the Offering of Common Stock issued not less than Thirty Million Dollars ($30,000,000) (including amounts outstanding under the Bridge Facility). (k) The Company shall have delivered a Certificate, executed on behalf of the Company 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), (c), (d), (f), (g), (h), (i) and (j) of this Section 6.2. (l) The Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer, 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 Continuance and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company. (m) The Investors shall have received an opinion from XxXxxxxx Xxxxxxxx LLP, the Company's counsel, dated as of the Closing Date, in form and substance reasonably acceptable to the Investors pursuant to Section 2.1(a)(iiand addressing (i) shall have been registered for sale pursuant to due authorization, (ii) no conflicts with the Registration StatementCertificate of Continuance and Bylaws of the Company, (iii) consents required under and compliance with Canadian securities laws and the Certificate of Continuance and Bylaws of the Company and (iv) due authorization and issuance of the Securities, including that they are fully paid and non-assessable.

Appears in 1 contract

Samples: Recapitalization Agreement (World Heart Corp)

Conditions to the Obligations of the Investors. The obligations of the Investors to consummate effect the transactions contemplated by this Agreement are Closing shall be further subject to the satisfaction or written or, to the extent permitted by applicable Law, waiver by the Investors (to the extent such condition can be waived), at on or prior to the Closing, of each Closing Date of the following conditions: (a) The Holdings IPO, with minimum gross proceeds no Company Material Adverse Effect shall have occurred since the date of $75,000,000, the net proceeds of which shall only be used as described in the draft prospectus for such offering previously provided this Agreement and prior to the Investors, shall have been consummated.Closing Date; (b) The the representations and warranties of Holdings and the Company in this Agreement shall be true and correct in all material respects (except for any representations and warranties that are already qualified as to “materiality” or “Material Adverse Effect,” which representations and warranties shall be true and correct in all respects) at on the date hereof and as of the Closing Date as if made on the Closing Date, except for the representations and warranties of Holdings and the Company set forth in Sections 3.2, 3.3, and 3.7 and 3.9, which shall be true and correct in all respects at and as of the Closing Date as if made on the Closing Date.; (c) Each of Holdings and the Company shall have performed or complied in all material respects with all of its obligations and covenants hereunder required by this Agreement to be performed or complied with by Holdings or the Company, as applicable, it at or prior to the Closing.; (d) Each Investor the Investors and Platou shall have received each a certificate, signed by an officer of the closing deliverables listed Company, certifying as to the matters set forth in Section 2.2(bSections 6.02(a) through 6.02(c).; (e) Holdings shall have duly filed no provision of any applicable Law and no permanent, preliminary or temporary judgment, injunction, order or decree that has the Preferred Stock COD with effect of preventing, prohibiting or making illegal the Secretary consummation of State any of the State of Delaware transactions contemplated by this Agreement shall be in effect at the Closing, and no action, claim or proceeding seeking any such judgment, injunction, order or decree shall be threatened in writing or pending at the Preferred Stock COD shall have become effective.Closing; (f) Holdings and the Company shall have paid or reimbursed duly adopted and caused to be filed with the documented out-of-pocket fees and expenses Registrar of each Investor relating to Companies of the negotiation Republic of this Agreement and each Related Agreement and the transactions contemplated hereby and thereby, including reasonably incurred legal fees and expenses.Xxxxxxxx Islands the Certificate of Designation; (g) From the date of this Agreement, there Company shall not have occurred any Material Adverse Effect, nor delivered to the Transfer Agent certificates representing the Purchased Shares and shall any event or events have occurred that, individually or in cause the aggregate, with or without Transfer Agent to deliver such certificates to the lapse of time, would reasonable be expected to result in a Material Adverse Effect.Investors; (h) The Registration Statement, including the Prospectus, amendments and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed shares of Common Stock to be incorporated by reference in issued on the Registrations Statement Closing Date shall not include any untrue statement of material fact or omit to state a material fact necessary in order to make have been approved for listing on the statements therein, in light of the circumstances under which they were made, not misleading.NYSE; (i) The Junior Notes the Company shall have converted into shares of Common Stock at a conversion price equal to eighty percent (80%) of duly executed and delivered the initial public offering price per share in the Holdings IPO and on terms no more favorable to the holders of the Junior Notes than is provided to the Investors with respect to the transactions contemplated by Section 2.1(a)(i).Escrow Agreement; and (j) The shares of Common Stock issued to the Investors pursuant to Section 2.1(a)(ii) Company’s Xxxxxxxx Islands counsel shall have been registered for sale pursuant to issued a customary legal opinion that includes opinions regarding the Registration Statementvalid issuance of the Purchased Shares, the due authorization, execution and delivery of this Agreement by the Company and the absence of conflicts with the Company’s articles of incorporation and bylaws.

Appears in 1 contract

Samples: Stock Purchase Agreement (DHT Holdings, Inc.)

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