Conditions to the Purchaser’s Obligations. The obligation of each Purchaser to purchase the Shares and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers: (i) The representations and warranties made by the Company in Section 3.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date. (ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect. (iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents. (iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a). (v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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. (vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws. (vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 4 contracts
Samples: Securities Purchase Agreement (Focus Enhancements Inc), Securities Purchase Agreement (Focus Enhancements Inc), Securities Purchase Agreement (Focus Enhancements Inc)
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser to purchase the Shares and Warrants at the Closing is Purchaser’s obligations hereunder shall be subject to the fulfillment due performance by the City of the City’s obligations and agreements to the Purchasers’ reasonable satisfaction, be performed hereunder on or prior to the Closing Date and to the accuracy of and compliance with the City’s representations contained herein, as of the date hereof and as of the Closing Date, of and are also subject to the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by the Company in Section 3.1 hereof There shall be true and correct except where delivered to the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it Purchaser on or prior to the Closing Date.Date a duly executed copy of the Ordinance, the Indenture, the Performance Agreement, this Agreement and the Lease and any other instrument contemplated thereby shall be in full force and effect and shall not have been modified or changed except as may have been agreed to in writing by the Purchaser;
(iib) The City shall confirm on the Closing Date by a certificate that at and as of the Closing Date the City has taken all action necessary to issue the Bonds and that there is no controversy, suit or other proceeding of any kind pending or threatened wherein any question is raised affecting in any way the legal organization of the City or the legality of any official act shown to have been done in the transcript of proceedings leading up to the issuance of the Bonds, or the constitutionality or validity of the indebtedness represented by the Bonds or the validity of the Bonds or any proceedings in relation to the issuance or sale thereof;
(c) The Company shall have obtained in execute a timely fashion any and all material consentscertificate, permitsdated the Closing Date, approvalsto the effect that (i) no litigation, registrations and waivers necessary proceeding or appropriate for consummation investigation is pending against the Company or its affiliates or, to the knowledge of the purchase and sale Company, threatened which would (A) contest, affect, restrain or enjoin the issuance, validity, execution, delivery or performance of the Shares and WarrantsBonds, all or (B) in any way contest the existence or powers of which shall the Company, (ii) no litigation, proceeding or investigation is pending or, to the knowledge of the Company, threatened against the Company that could reasonably be and remain so long as necessary in full force and effect.
expected to adversely affect its ability to perform its obligations hereunder, (iii) 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, the representations and no action or proceeding shall have been instituted by any governmental authority, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) The Company shall have delivered a Certificate, executed on behalf warranties of the Company by its Chief Executive Officer or its Chief Financial Officer, dated herein were and are true and correct in all material respects and not misleading as of the date made and as of the Closing Date, certifying to the fulfillment of the conditions specified in subsections and (i), (ii), (iiiiv) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated such other matters as of the Closing Date, certifying the resolutions adopted are reasonably requested by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and parties in connection with the issuance of the Shares Bonds; and
(d) Receipt by the Purchaser and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company of an approving opinion from Xxxxxxx & Xxxx, P.C., in form and certifying as substance satisfactory to the signatures Purchaser and authority of persons signing the Transaction Documents and related documents on behalf of the Company.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 3 contracts
Samples: Bond Purchase Agreement, Bond Purchase Agreement, Bond Purchase Agreement
Conditions to the Purchaser’s Obligations. The obligation respective obligations of the Purchaser pursuant to Section 2.2 in connection with any Closing are subject to the satisfaction, or waiver in accordance with this Agreement, of the following conditions on or before such Closing Date:
(i) the representations and warranties of each Purchaser Company Party contained in any Transaction Document shall be true and correct in all material respects as of the applicable Closing Date (unless expressly made as of an earlier date herein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements required to be performed by any Company Party on or prior to the applicable Closing Date pursuant to any Transaction Document (other than the obligations set forth in Section 2.3 to be performed at the Closing) shall have been performed;
(iii) the delivery by each Company Party of the items such Company Party is required to deliver on or prior to the applicable Closing Date pursuant to Section 2.3(a);
(iv) there shall be no breach of any obligation, covenant or agreement of any Company Party under the Transaction Documents and no existing event which, with the passage of time or the giving of notice, would constitute such a breach;
(v) no Material Adverse Effect shall have occurred from the date hereof through the Closing Date;
(vi) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or other federal, state, local or other governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction; Documents
(vii) from the date hereof through the applicable Closing Date, trading in the shares of Common Stock shall not have been suspended by the Commission or the Company’s principal Trading Market and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak, including, without limitation, a pandemic, or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Purchaser, and without regard to any factors unique to the Purchaser, makes it impracticable or inadvisable to purchase the Shares and Warrants Securities at the Closing Closing;
(viii) the Company meets the current public information requirements under Rule 144 in respect of the Conversion Shares; and
(ix) any other conditions contained herein or the other Transaction Documents, including delivery of the items that any Company Party is subject required to the fulfillment to the Purchasers’ reasonable satisfaction, deliver on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(i) The representations and warranties made by the Company in Section 3.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission Date pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities lawsSection 2.3.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Fresh Vine Wine, Inc.), Securities Purchase Agreement (Fresh Vine Wine, Inc.)
Conditions to the Purchaser’s Obligations. The obligation obligations of each Purchaser to purchase the Shares and Warrants at the Closing is hereunder are subject to the fulfillment to accuracy, as of the Purchasers’ reasonable satisfaction, date hereof and on or prior to the Closing Date, of the following conditionsrepresentations and warranties of the Corporation contained herein, except to the extent any such representation or warranty expressly specifies as of which may be waived in writing an earlier date, and to the performance by the PurchasersCorporation of its obligations hereunder and to each of the following additional terms and conditions:
(a) The Corporation will have furnished to the Purchasers a certificate, dated the Closing Date, executed on behalf of the Corporation by each of the President and Chief Executive Officer and the Chief Financial Officer of the Corporation, stating that:
(i) The representations and warranties made by of the Company Corporation in Section 3.1 4.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 except to the fulfillment extent any such representation or warranty expressly specifies as of the conditions specified an earlier date, in subsections (i), which case such representation or warranty shall be true and correct as of such earlier date; and
(ii), (iii) and(vii) of this Section 2.2(a)The Corporation shall have complied in all material respects with all its agreements contained herein.
(vb) The Company Any authorizations, consents, commitments, agreements, orders or approvals of, or declarations or filings with, or expirations of waiting periods imposed by any federal, state or local court or governmental or regulatory agency or authority or applicable stock exchange or trading market (any such court, agency, authority, exchange or market, a “Governmental Authority”) required for the consummation of the Transactions, as defined herein, shall have delivered a Certificatebeen obtained or filed or shall have occurred and any such orders shall have become final, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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 Companynon-appealable orders.
(vic) The Prospectus Corporation shall have been filed with the Commission pursuant executed and delivered to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness Purchaser each of the Registration Statement or any part thereof Transaction Documents.
(d) Xxxxxx Xxxxx LLP, counsel to the Corporation, shall have furnished to the Purchasers its written opinion addressed to the Purchasers and dated the Closing Date that the Shares have been duly authorized and, when issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus delivered in accordance with the federal securities lawsthis Agreement, will be validly issued, fully paid and non-assessable.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Texas Capital Bancshares Inc/Tx), Stock Purchase Agreement (Texas Capital Bancshares Inc/Tx)
Conditions to the Purchaser’s Obligations. The obligation obligations of each Purchaser to purchase the Shares Property from Seller and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(i) The representations and warranties made by the Company in Section 3.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving consummate the transactions contemplated by this Agreement are subject to the satisfaction, at all times prior to and the other Transaction Documents and the issuance as of the Shares and WarrantsClosing with respect to such Property (or such other time period specified below), certifying the current versions of each of the Certificate of Incorporation and Bylaws following conditions:
(a) All of the Company representations and certifying warranties of Seller set forth in this Agreement shall be true at all times prior to, at and as to of, the signatures Closing in all material respects and authority of persons signing Seller shall deliver a Closing Certificate in substantially the Transaction Documents same form attached hereto as Exhibit B-1 updating such representations and related documents on behalf of the Companywarranties.
(vib) The Prospectus Seller shall have delivered, performed, observed and complied with, all of the items, instruments, documents, covenants, agreements and conditions required by this Agreement to be delivered, performed, observed and complied with by it prior to, or as of, the Closing.
(c) Seller shall not be in receivership or dissolution or have made any assignment for the benefit of creditors, or admitted in writing its inability to pay its debts as they mature, or have been adjudicated a bankrupt, or have filed a petition in voluntary bankruptcy, a petition or answer seeking reorganization or an arrangement with creditors under the federal bankruptcy law or any other similar law or statute of the United States or any state and no such petition shall have been filed against it.
(d) No material or substantial adverse change shall have occurred with respect to the Commission pursuant condition, financial or otherwise, of the Seller or the Property.
(e) Neither the Property nor any part thereof or interest therein shall have been taken by execution or other process of law in any action prior to Rule 424(bClosing, nor shall any action or proceeding seeking any such taking be pending.
(f) under Purchaser shall have completed its Investigations of the Securities Act within physical condition of the applicable time period prescribed Property by agents or contractors selected by Purchaser and, in its sole discretion, shall have determined the results of such Investigations to be satisfactory or shall be deemed to have waived the Investigations by the expiration of the Review Period.
(g) Purchaser shall have received, in form reasonably acceptable to Purchaser and at Purchaser’s expense, an engineering report that evidences compliance by the Property with all building codes, zoning ordinances and other governmental entitlements (including, without limitation, the Americans with Disabilities Act) as necessary for the operation of the Property for the current and intended use, including, without limitation, certificates of occupancy (or evidence of the existence thereof) and such filing; no stop order suspending other permits, licenses, approvals, agreements and authorizations as are required for the operation of the Property for its current and intended use.
(h) All necessary approvals, consents and the like to the validity and effectiveness of the Registration Statement or any part thereof transactions contemplated hereby have been obtained. Purchaser has reviewed the Due Diligence Materials and, in its sole discretion, shall have determined the results of such review of the Due Diligence Materials to be satisfactory.
(i) No portion of the Property shall have been issued and no proceeding for that purpose destroyed by fire or casualty.
(j) No condemnation, eminent domain or similar proceedings shall have been initiated commenced or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person in writing with respect to public trading in any portion of the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities lawsProperty.
(viik) All notices required under the U.S. Forest Service Permits will have been made, and any approvals required thereunder or by any applicable Law relating thereto will have been obtained. The CompanyUSFS shall either have (i) approved the sale of the Assets to the Purchaser or (ii) issued to Purchaser a new permit (in contemplation of the transactions contemplated by this Agreement) for the use of applicable U.S. Forest Service Properties covering the same Real Property as covered in Seller’s Common Stock U.S. Forest Service Permit and otherwise on the then current form of the USFS for such agreements. From and after the Closing Date, Seller shall pay or cause to be paid, and shall indemnify, defend and hold harmless the Purchaser and it Affiliates for any and all fees under the U.S. Forest Service Permits allocable to periods ending on or before the Closing Date, including without limitation any and all such fees determined by a “close-out audit” or otherwise in connection with the issuance of a new permit by the USFS.
(including l) Guarantor shall have executed and delivered the Shares and the Warrant SharesGuaranty to Purchaser.
(m) Entertainment Properties Trust (EPT) shall be eligible for inclusion on have consented to and approved this transaction in writing, and have consented to and approved delivery of the Nasdaq Capital Market and listed and admitted and authorized for trading on guaranty by Peak Resorts, Inc.
(n) Seller shall have delivered to Purchaser an Indemnity Agreement regarding the Nasdaq Capital Market1986 Lifetime Season Passes.
Appears in 2 contracts
Samples: Agreement of Sale and Purchase (Peak Resorts Inc), Agreement of Sale and Purchase (Peak Resorts Inc)
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser to purchase the Shares and Warrants Notes at the Closing is subject to the fulfillment to the PurchasersRequisite Holders’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the PurchasersRequisite Holders:
(ia) The representations and warranties made by the Company in Section 3.1 5 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except where to the failure to extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be so true and correct does as of such earlier date, and, the representations and warranties made by the Company in Section 5 hereof not have a Material Adverse Effectqualified as to materiality shall be true and correct in all material respects 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 in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing DateDate (including the delivery of the certificates representing the Notes in accordance with Section 4 hereof).
(iib) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares Notes including, without limitation, the acceptance of TSX and Warrantsthe approval of AMEX, and all of which shall be and remain so long as necessary in full force and effect.
(iiic) The Company shall have executed and delivered the Registration Rights Agreement and the Subordination Agreement to the Purchasers.
(d) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Note Documents.
(ive) 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 (ia), (iib), (iii) and(viid), and (h) of this Section 2.2(a)7.1.
(vf) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Note Documents and the issuance of the Notes and the Common Shares and Warrantsupon conversion thereof, certifying the current versions of the Certificate Notice of Incorporation Articles and Bylaws Articles of the Company and certifying as to the signatures and authority of persons signing the Transaction Note Documents and related documents on behalf of the Company.
(vig) The Prospectus Purchasers shall have been filed with received (i) an opinion from Xxxxx & Xxxxxxx L.L.P., the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness Company’s U.S. counsel, dated as of the Registration Statement or any part thereof shall have been issued Closing Date, in the form attached hereto as Exhibit D-1; and no proceeding for that purpose shall have been initiated or threatened by (ii) an opinion from Bull, Housser & Xxxxxx LLP, the Commission; no Company’s Canadian counsel, dated as of the Closing Date, in the form attached hereto as Exhibit D-2.
(h) No stop order, cease trade order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities lawsShares.
(viii) The Company’s Common Stock (including Shares to be issued upon conversion of the Shares and the Warrant Shares) Notes shall be eligible have been approved for inclusion on the Nasdaq Capital Market AMEX and Toronto Stock Exchange and listed and admitted and authorized for trading on AMEX and Toronto Stock Exchange. Satisfactory evidence of such actions shall have been provided to the Nasdaq Capital MarketPlacement Agents.
(j) The Company shall have obtained the consent of JPMorgan Chase Bank, N.A. with respect to the consummation of the Private Placement and the transactions contemplated by the Note Documents and shall have deliver a written copy of such consent to the Purchasers.
Appears in 2 contracts
Samples: Series a Note Purchase Agreement (Storm Cat Energy CORP), Series a Note Purchase Agreement (Storm Cat Energy CORP)
Conditions to the Purchaser’s Obligations. The obligation obligations of each Purchaser of the Purchasers hereunder required to purchase the Shares and Warrants be performed at the Closing is subject shall be subject, at its election, to the fulfillment to satisfaction or waiver (which waiver, if so requested by the Purchasers’ reasonable satisfactionCompany, on shall be made in writing), at or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by of the Company in Section 3.1 hereof made herein shall be true and correct in all material respects (disregarding, for purposes of such determination of materiality, all qualifications in such representations and warranties regarding "material") as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except where that representations and warranties made herein that by their terms speak as of the failure to date of this Agreement or some other date shall be so true and correct does not have a Material Adverse Effect. only as of such date).
(b) The Company shall have performed in all material respects all obligations and conditions herein required agreements, and complied in all material respects with all covenants, contained in this Agreement, to be performed or observed and complied with by it on at or prior to the Closing Date.
(iic) The Company shall have obtained in a timely fashion any All documents, instruments, agreements and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of arrangements relating to the purchase and sale of transactions contemplated by the Shares and Warrants, all of which Documents shall be and remain so long as necessary in full force and effect.
(iii) 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 authoritysatisfactory to such Purchaser, shall have been issuedexecuted and delivered by the parties thereto and no party to any of the foregoing (other than the Purchasers) shall have breached any of its material obligations thereunder.
(d) (i) Since September 30, 2001, no change, occurrence or development shall have occurred, been threatened or become known to such Purchaser that could reasonably be expected to have a Material Adverse Effect on the business, operations, prospects, properties or condition (financial or other) of the Company and PRSI, taken as a whole, which, in the reasonable judgment of such Purchaser, is or may be materially adverse to the Company and PRSI, taken as a whole, and no action (ii) none of the Purchasers shall have become aware of any information or proceeding other matter relating to the Company (x) of which the Company (but not the Purchasers) had knowledge on or prior to the date of this Agreement, (y) that, in such Purchaser's reasonable judgment, is inconsistent with any information or other matter relating to the Company disclosed to such Purchaser by the Company or any of its representatives prior to the date of this Agreement, and (z) would have been viewed by such Purchaser, in its reasonable judgment, as having materially and adversely altered the total mix of information made available to such Purchaser prior to the date of this Agreement. For purposes of this Section 7.2(d), the Company shall be deemed to have "knowledge" of a particular fact or other matter if (I) any individual who is serving, or who has at any time served, as a director, officer or management-level employee of the Company is actually aware of such fact or other matter; or (II) a prudent individual serving as a director, officer or management-level employee of the Company could be expected to discover or otherwise become aware of such fact or other matter in the diligent exercise of his or her duties in such capacity.
(e) Since September 30, 2001, the business of the Company shall have been instituted by any governmental authorityoperated in compliance with all Applicable Laws, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect on the Company and PRSI, taken as a whole.
(f) There shall be no litigation, proceeding or self-regulatory organization enjoining other action seeking an injunction or preventing other restraining order, damages or other relief from a Governmental Authority or other Person pending or threatened which, in the reasonable judgment of such Purchaser, would materially adversely affect the consummation of the transactions contemplated by the Documents on the terms contemplated hereby and thereby and there shall be no litigation, proceeding or other action (including, without limitation, relating to environmental matters or the Benefit Plans) pending or threatened against the Company or PRSI which could, individually or in the other Transaction Documentsaggregate, reasonably be expected to have a Material Adverse Effect.
(ivg) All governmental and regulatory approvals and clearances and all third-party consents necessary for the consummation of all of the transactions contemplated at such Closing shall have been obtained and shall be in full force and effect, and each of the Purchasers shall be reasonably satisfied that the consummation of such transactions does not and will not contravene any Applicable Law, except to the extent any contravention or contraventions, individually or in the aggregate, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(h) The Company shall have delivered to each Purchaser a Certificatecertificate, executed by it or on its behalf of the Company by its Chief Executive Officer or its Chief Financial Officera duly authorized representative, dated as of the such Closing Date, certifying to that each of the conditions (other than any condition the fulfillment of which is subject to the conditions reasonable satisfaction of such Purchaser) specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a)7.2 has been satisfied.
(vi) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf Each of the Company.
(vi) The Prospectus , and the Purchasers shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness executed and delivered each of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities lawsDocuments, as applicable.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 2 contracts
Samples: Purchase Agreement (Us Search Corp Com), Purchase Agreement (Us Search Corp Com)
Conditions to the Purchaser’s Obligations. The obligation obligations of each Purchaser to purchase the Shares Property from Seller and Warrants at to consummate the Closing is transactions contemplated by this Agreement are subject to the fulfillment satisfaction, at all times prior to and as of the Closing with respect to such Property or Parcel(s) thereof (or such other time period specified below), of each of the following conditions:
(a) All of the representations and warranties of Seller set forth in this Agreement shall be true at all times prior to, at and as of, the Closing in all material respects and Seller shall deliver a Closing Certificate in substantially the same form attached hereto as Exhibit D updating such representations and warranties.
(b) Seller shall have delivered, performed, observed and complied with, all of the items, instruments, documents, covenants, agreements and conditions required by this Agreement to be delivered, performed, observed and complied with by it prior to, or as of, the Closing.
(c) Seller shall not be in receivership or dissolution or have made any assignment for the benefit of creditors, or admitted in writing its inability to pay its debts as they mature, or have been adjudicated a bankrupt, or have filed a petition in voluntary bankruptcy, a petition or answer seeking reorganization or an arrangement with creditors under the federal bankruptcy law or any other similar law or statute of the United States or any state and no such petition shall have been filed against it.
(d) No material or substantial adverse change shall have occurred with respect to the Purchasers’ reasonable satisfactioncondition, on financial or otherwise, of any Seller or the Property.
(e) Neither the Property nor any part thereof or interest therein shall have been taken by execution or other process of law in any action prior to Closing, nor shall any action or proceeding seeking any such taking be pending.
(f) Purchaser shall have completed its Investigations of the physical condition of the Property by agents or contractors selected by Purchaser and, in its sole discretion, shall have determined the results of such Investigations to be satisfactory or shall be deemed to have waived the Investigations by the expiration of the Review Period.
(g) Purchaser shall have received, in form reasonably acceptable to Purchaser and at Seller’s expense, an engineering report that evidences compliance by the Property with all building codes, zoning ordinances and other governmental entitlements (including, without limitation, the Americans with Disabilities Act) as necessary for the operation of the Property for the current and intended use, including, without limitation, certificates of occupancy (or evidence of the existence thereof) and such other permits, licenses, approvals, agreements and authorizations as are required for the operation of the Property for its current and intended use.
(h) All necessary approvals, consents and the like to the validity and effectiveness of the transactions contemplated hereby have been obtained. Purchaser has reviewed the Due Diligence Materials and, in its sole discretion, shall have determined the results of such review of the Due Diligence Materials to be satisfactory.
(i) No portion of the Property shall have been destroyed by fire or casualty.
(j) No condemnation, eminent domain or similar proceedings shall have been commenced or threatened in writing with respect to any portion of the Property.
(k) Tenant shall have executed and delivered such non-disturbance and attornment agreements and agreements subordinating the Lease to liens of Purchaser’s lenders in such form as is deemed commercially reasonable.
(l) Seller shall deliver to Purchaser estoppel certificates in such form as Purchaser may reasonably require, dated not more than thirty (30) days prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
from (i) The representations the tenants under any leases of the Parcel(s) that will remain in effect; (ii) such parties to reciprocal easement agreements or agreements of conditions, covenants and warranties made by the Company restrictions as Purchaser, in Section 3.1 hereof shall be true its sole discretion, deems necessary or appropriate, and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed (iii) such other parties as Purchaser, in all material respects all obligations and conditions herein required to be performed its sole discretion, deems necessary or observed by it on or prior to the Closing Dateappropriate.
(iim) The Company Purchaser and Seller shall have obtained in executed a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate Lease for consummation each Parcel of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.Property being purchased;
(iiin) 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, Guarantor shall have been issued, executed and no action or proceeding shall have been instituted by any governmental authority, or self-regulatory organization enjoining or preventing delivered the consummation of the transactions contemplated hereby or in the other Transaction DocumentsGuaranty to Purchaser.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 2 contracts
Samples: Option Agreement (Peak Resorts Inc), Restructure Agreement (Peak Resorts Inc)
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser Purchaser's obligations to purchase the Purchased Shares and Warrants to take the other actions required to be taken by it at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on at or prior to the Closing DateClosing, of each of the following conditions, conditions (any of which may be waived in writing by the Purchasers:Purchaser, in whole or in part):
(ia) The representations and warranties made by of the Company contained in Section 3.1 hereof this Agreement shall be true on and correct as of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing Date, except where to the failure extent any such representations and warranties are stated to be so made as of a specific date, in which case they shall be true as of such date, except in each case for any inaccuracies in such representations and correct does warranties as would not have a Material Adverse Effect. The In addition, the Company shall have performed in all material respects all obligations and conditions herein required pursuant to the terms of this Agreement or any of the other Transactional Agreements to be performed or observed by it on or prior to the Closing DateClosing.
(iib) The Company shall have delivered to the Purchaser a certificate, executed by an executive officer of the Company, dated the date of the Closing, setting forth the Company's representation that the conditions set forth in Section 4.1(a) above shall have been satisfied.
(c) The Purchaser Board Designee (as defined in the Investment Agreement) shall have been appointed to a term on the Board of Directors of the Company as provided in the Investment Agreement.
(d) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations waivers and waivers approvals necessary or appropriate for consummation of the purchase and sale Transactions (except for such as may be properly obtained subsequent to the Closing), provided, that, notwithstanding anything to the contrary, the expiration or early termination of the Shares and Warrants, all of which applicable waiting period under the HSR Act shall not be and remain so long as necessary in full force and effecta condition to the Purchaser's obligations hereunder.
(iiie) No judgmentThe Company shall have executed and delivered to the Purchaser or a Purchaser Party Affiliate, as applicable, each of (i) the Investment Agreement and (ii) the Outside Service Provider Agreement.
(f) There shall be no injunction, writ, order, injunction, award preliminary restraining order or decree other order in effect of or any nature issued by any court, or judge, justice or magistrate, including any bankruptcy a court or judge, or any order governmental agency of or by any governmental authority, shall have been issued, competent jurisdiction directing that the Transactions not be consummated in the manner provided for in this Agreement and no the other Transactional Agreements. No action or proceeding shall have been instituted by and remain pending before a court or other governmental body of competent jurisdiction to restrain, prohibit or otherwise challenge any governmental authority, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby Transactions (or in seeking material damages from the Purchaser, the Company or any Purchaser Party Affiliate as a result thereof), other than any such action or proceeding which would not have a Material Adverse Effect or prevent the Company or the Purchaser from performing their respective obligations hereunder or under any of the other Transaction DocumentsTransactional Agreements.
(ivg) The Company shall have delivered to the Purchaser a Certificatelegal opinion from counsel to the Company, executed on behalf in form and substance reasonably satisfactory to the Purchaser and its counsel and addressing the matters listed in Exhibit D hereto.
(h) On or prior to the Closing Date, the Purchaser shall have received a certificate of the Company by its Chief Executive Officer or its Chief Financial OfficerSecretary of State of the State of Delaware, dated as of the Closing Datea recent date, certifying to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf good standing of the Company.
(vii) The Prospectus IPO shall have been consummated or shall be consummated concurrently with the Closing.
(j) If the Purchaser is purchasing shares of Junior Preferred Stock pursuant to the terms hereof, the Certificate of Designation shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness Secretary of State of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension State of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities lawsDelaware.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 2 contracts
Samples: Stock Purchase and Master Strategic Relationship Agreement (Nippon Telegraph & Telephone Corp), Stock Purchase and Master Strategic Relationship Agreement (Verio Inc)
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase the Shares and Warrants at consummate the Closing is further subject to the fulfillment to the Purchasers’ reasonable satisfaction, on at or prior to the Closing Date, of the following additional conditions, any of which may be waived in writing by the Purchasers:
(i) The representations and warranties made by the Company in Section 3.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company Issuer shall have performed in all material respects all of its obligations and conditions herein hereunder required to be performed or observed by it on or prior to the Closing Date.
Closing; (ii) The Company the representations and warranties of the Issuer contained herein that are qualified as to materiality or Material Adverse Effect shall have obtained be true and correct in a timely fashion any all respects on and as of the Closing Date and the representations and warranties of the Issuer contained herein that are not so qualified shall be true and correct in all material consents, permits, approvals, registrations respects on and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 in each case as if made on and as of such date (in each case except to the fulfillment extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct, or true and correct in all material respects, as the case may be, on and as of such earlier date); the conditions specified Issuer shall have performed and complied in subsections (i), (ii), all material respects with all covenants and agreements required by this Agreement to be performed or complied with by it at or prior to the Closing Date; and (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received a certificate dated the Prospectus in accordance with Closing Date signed by an authorized officer of the federal securities laws.Issuer to the foregoing effect;
(viib) The Company’s Common Stock Fee Agreement shall have been executed and delivered by the Issuer to the Purchaser;
(including c) The Purchaser shall have received an opinion, dated the Shares Closing Date, of counsel to the Issuer, in form and substance reasonably satisfactory to the Purchaser; and
(d) The Purchaser shall have received all documents reasonably requested by it relating to the existence of the Issuer, the corporate authority for the Issuer's entering into, and the Warrant Shares) shall be eligible for inclusion on validity of, the Nasdaq Capital Market Agreements and listed the Securities, all in form and admitted and authorized for trading on the Nasdaq Capital Marketsubstance reasonably satisfactory to it.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Francisco Partners Lp), Stock Purchase Agreement (Marchfirst Inc)
Conditions to the Purchaser’s Obligations. The obligation obligations of each Purchaser to purchase the Shares a Property from Seller and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(i) The representations and warranties made by the Company in Section 3.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving consummate the transactions contemplated by this Agreement are subject to the satisfaction, at all times prior to and the other Transaction Documents and the issuance as of the Shares and WarrantsClosing with respect to such Property (or such other time period specified below), certifying the current versions of each of the Certificate of Incorporation and Bylaws following conditions:
(a) All of the Company representations and certifying warranties of Seller set forth in this Agreement shall be true at all times prior to, at and as to of, the signatures Closing in all material respects and authority of persons signing Seller shall deliver a Closing Certificate in substantially the Transaction Documents same form attached hereto as EXHIBIT E updating such representations and related documents on behalf of the Companywarranties.
(vib) The Prospectus Seller shall have delivered, performed, observed and complied with, all of the items, instruments, documents, covenants, agreements and conditions required by this Agreement to be delivered, performed, observed and complied with by it prior to, or as of, the Closing.
(c) Seller shall not be in receivership or dissolution or have made any assignment for the benefit of creditors, or admitted in writing its inability to pay its debts as they mature, or have been adjudicated a bankrupt, or have filed a petition in voluntary bankruptcy, a petition or answer seeking reorganization or an arrangement with creditors under the federal bankruptcy law or any other similar law or statute of the United States or any state and no such petition shall have been filed against it.
(d) No material or substantial adverse change shall have occurred with respect to the Commission pursuant condition, financial or otherwise, of the Seller or the Property.
(e) Neither the Property nor any part thereof or interest therein shall have been taken by execution or other process of law in any action prior to Rule 424(bClosing, nor shall any action or proceeding seeking any such taking be pending.
(f) under During the Securities Act within Review Period, Purchaser shall have satisfactorily completed its Investigations of the applicable time period prescribed Property with respect to the physical condition thereof by agents or contractors selected by Purchaser.
(g) During the Review Period, Purchaser shall have received, in form acceptable to Purchaser, evidence of compliance by the Property with all building codes, zoning ordinances and other governmental entitlements as necessary for the operation of the Property for the current and intended use, including, without limitation, certificates of occupancy (or evidence of the existence thereof) and such filing; no stop order suspending other permits, licenses, approvals, agreements and authorizations as are required for the operation of the Property for the current and intended use.
(h) During the Review Period, all necessary approvals, consents and the like of third parties to the validity and effectiveness of the Registration Statement or any part thereof transactions contemplated hereby have been obtained.
(i) During the Review Period, Purchaser has reviewed and satisfied itself with respect to the Due Diligence Materials.
(j) No material portion of the Property shall have been issued and no proceeding for that purpose destroyed by fire or casualty.
(k) No condemnation, eminent domain or similar proceedings shall have been initiated commenced or threatened by in writing with respect to any material portion of the Commission; no stop order or suspension of trading Property.
(l) Purchaser shall have been imposed by any Person successful in causing the formation of a real estate investment trust whose interests have been sold to the public pursuant to the Registered Offering and in connection therewith shall have raised capital in an amount not less than $_____________________.
(m) Purchaser shall have entered into option agreements, acceptable in form and substance to Purchaser, for the purchase of the Grantor Option Properties, such agreements to provide for the closing of the purchase of the Grantor Option Property as set forth therein. With respect to the conditions precedent set forth in paragraphs (a), (b), (d), (e), (f), (g), (h), (i), (j), (k) and (m) of this Section 6.1, Purchaser shall have the right to determine whether each of said conditions has been satisfied separately with respect to public trading in the Common Stock; each individual Property or Grantor Option Property, and the if Purchaser shall determine that any of said conditions have not been satisfied with respect to any one or more individual Property or Grantor Option Property, Purchaser shall have received the Prospectus in accordance right, notwithstanding the provisions of Section 6.2 hereof (subject, however, to the provisions of Section 6.3(e) hereof), to terminate this Agreement with respect to any one or more individual Property as to which any of such conditions has not been satisfied, and to proceed with the federal securities lawsClosing with respect to the remaining Property.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 2 contracts
Samples: Agreement of Sale and Purchase (Amc Entertainment Inc), Option Agreement (Amc Entertainment Inc)
Conditions to the Purchaser’s Obligations. The obligation obligations of each the Purchaser to purchase consummate the Shares and Warrants at the Closing is transactions contemplated by this Agreement are subject to the fulfillment to satisfaction (or waiver by the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, Purchaser in writing) of the following conditions, any conditions as of which may be waived in writing by the PurchasersClosing:
(a) (i) The Other than the Fundamental Representations, the representations and warranties made by of the Company Sellers set forth in Section 3.1 Article 3 and Article 4 hereof shall be true and correct in all respects as of the Closing Date as though then made (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date), except where the failure of such representations and warranties to be so true and correct does not would not, in the aggregate, have a Material Adverse Effect. , and (ii) the Fundamental Representations of the Sellers set forth in Article 3 and Article 4 hereof shall be true and correct in all respects as of the Closing Date as though then made (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date).
(b) The Company and the Parent shall have performed in all material respects all obligations the covenants and conditions herein agreements required to be performed or observed by it on them under this Agreement at or prior to the Closing.
(c) No Material Adverse Effect shall have occurred between the date hereof and the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iiid) No judgment, writ, order, injunction, award decree 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, entered and no action not withdrawn which would prevent the performance of this Agreement or proceeding shall have been instituted by any governmental authority, or self-regulatory organization enjoining or preventing the consummation of any of the transactions contemplated hereby hereby, declare unlawful the transactions contemplated by this Agreement or in the other Transaction Documentscause such transactions to be rescinded, there is no action, suit, arbitration, mediation or proceeding which seeks, or could reasonably be expected to result in, such a judgement, decree or order.
(ive) The Company Each Seller shall have delivered to the Purchaser a Certificate, good standing certificate (or its equivalent) from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which such Seller is organized.
(f) The Sellers shall have delivered to the Purchaser each of the following:
(i) a certificate executed on behalf by an officer of the Company by its Chief Executive Officer or its Chief Financial Officerand an officer of the Parent, in form and substance reasonably acceptable to the Purchaser, dated as of the Closing Date, certifying to the fulfillment of stating that the conditions specified in subsections (iSections 2.01(a), 2.01(b) and 2.01(c) have been satisfied;
(ii)) a certificate, (iii) and(vii) duly executed by the secretary or another authorized officer of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretaryeach Seller, dated as of the Closing Date, certifying (A) that true and complete copies of each Seller’s (x) articles of incorporation, articles of formation, or similar organizing document, and (y) bylaws, operating agreement, or similar governing document, as are in effect on the Closing Date, are attached to such certificate (or in the case of the Parent, are filed with the Securities and Exchange Commission), (B) that the officer of each Seller who executed this Agreement and each Ancillary Document to which such Seller is a party was authorized to execute and deliver such agreements and documents on behalf of such Seller, and (C) as to the genuineness of the resolutions adopted by the Board of Directors of the Company approving board of directors, managers, or similar governing body of each Seller authorizing the transactions contemplated execution, delivery and performance by such Seller of this Agreement and the other Transaction Ancillary Documents to which it is a party, and the issuance consummation of all transactions contemplated hereby and thereby, and that an accurate copy of such resolutions are attached to such certificate;
(iii) a xxxx of sale, in customary form reasonably satisfactory to the Purchaser, executed by the Company with respect to the conveyance of the Shares Purchased Assets to the Purchaser;
(iv) a counterpart to an assignment and Warrantsassumption agreement, certifying in customary form reasonably acceptable to the current versions Purchaser and the Company (the “Assignment and Assumption Agreement”), executed by the Company, with respect to the Assumed Liabilities and instruments, rights and other obligations being assigned by the Company to the Purchaser;
(v) a counterpart to an assignment of intellectual property (the “Assignment of Intellectual Property”), in customary form reasonably satisfactory to the Purchaser and the Company, executed by the Company, with respect to the transfer and assignment of the Certificate of Incorporation and Bylaws of Intellectual Property Rights included in the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company.Purchased Assets;
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened a certificate, executed by the Commission; no stop order or suspension Parent under penalties of trading perjury, stating that the Parent is not a foreign person, which certificate shall have been imposed by any Person with respect to public trading be in the Common Stock; form and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.substance required under Treasury Regulation Section 1.1445-2(b)(2);
(vii) The copies of the third party consents, waivers, filings and notices required in connection with the consummation of the transactions hereunder as set forth in Schedule 2.01(f)(vii), each of which shall have been obtained or, in the case of filings or notices, filed or delivered, in each case on terms reasonably satisfactory to the Purchaser;
(viii) evidence reasonably satisfactory to the Purchaser that any and all Encumbrances (other than Permitted Liens) with respect to any of the Purchased Assets have been fully released and removed prior to the Closing or evidence that such Encumbrances will be released at the Closing;
(ix) a counterpart to the transition services agreement in substantially the form attached hereto as Exhibit B (the “Transition Services Agreement”), executed by the Company’s Common Stock ; and
(including x) a counterpart to the Shares and sublease agreement on customary terms mutually agreed upon by the Warrant Shares) parties (the “Sublease Agreement”), executed by the Company. If the Closing occurs, all closing conditions set forth in this Section 2.01 that have not been fully satisfied as of the Closing shall be eligible for inclusion on deemed to have been waived by the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital MarketPurchaser.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation obligations of each the Purchaser to purchase consummate the Shares and Warrants at the Closing is transactions contemplated herein are subject to the fulfillment reasonable satisfaction (or written waiver, in whole or part, to the Purchasers’ reasonable satisfactionextent permitted by Requirements of Law, on of the Purchaser) of the following conditions:
(a) The representations and warranties of the Seller contained in Article V of this Agreement shall be true and correct (without giving effect to any materiality qualification or standard contained in any such representation or warranty) at and as of each of the date hereof and the Closing as if made at and as of each such time (except to the extent expressly made as of another date, in which case as of such other date), except where the failure of such representations and warranties to be true and correct would not, in the aggregate, result in a Material Adverse Effect;
(b) All of the covenants and obligations in this Agreement that the Seller is required to comply with or to perform at or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(i) The representations and warranties made by the Company in Section 3.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have been complied with and performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.respects;
(iic) The Company Purchaser shall have obtained in received a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of certificate executed by the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) The Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer or its and Chief Financial Officer, dated as Officer of the Closing DateSeller, certifying to the fulfillment of in their capacities as such, confirming that the conditions specified set forth in subsections (i), (ii), (iiiSection 7.02(a) and(viiand Section 7.02(b) of this Section 2.2(a).have been satisfied;
(vd) The Company shall have delivered a Certificate, executed on behalf Review and investigation of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus under Exon-Fxxxxx shall have been filed with terminated and either the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness President of the Registration Statement United States or any part thereof the Committee on Foreign Investment in the United States (or other authority that may become authorized to so act), as the case may be, shall have determined to take no action authorized thereunder;
(e) The FERC Approval and the regulatory approvals listed on Section 6.06(a) of the Seller's Disclosure Letter shall have been issued obtained and no proceeding for shall not, individually or in the aggregate, impose terms, conditions, liabilities, obligations, commitments or sanctions upon the Company, its Subsidiary or the Purchaser or any of its Affiliates that purpose would reasonably be expected to result in a Material Adverse Effect;
(f) The amounts outstanding under the indebtedness identified in Section 6.13 as being repaid at Closing shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; repaid and the Purchaser shall have received written proof of such repayment;
(g) The Seller shall have delivered to the Prospectus Purchaser a certificate in accordance with the federal securities laws.requirements of Treasury Regulation Section 1.1445-3 that certifies that the Seller is a non-foreign person for purposes of Section 1445 of the Code; and
(viih) The Company’s Common Stock No Material Adverse Effect shall have occurred since the date of this Agreement and there shall exist no fact or circumstance that would have, or would be reasonably likely to have, a Material Adverse Effect (including the Shares and discovery of, any deterioration in, or any worsening of, any event, condition, effect, change, development or circumstance existing or known as of the Warrant Shares) shall be eligible for inclusion on date of this Agreement, to the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Marketextent of any such deterioration or worsening).
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation obligations of each the Purchaser to purchase consummate the Shares and Warrants at the Closing is transactions contemplated by this Agreement shall be subject to the fulfillment to the Purchasers’ reasonable satisfaction, on at or prior to the Closing Date, of each of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The All representations and warranties made by the Company Shareholders contained in Section 3.1 hereof this Agreement shall be true and correct except where on the failure to be so true date hereof and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to as of the Closing Date.
(ii) The Company shall have obtained in a timely fashion any Date as though such representations and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) The Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer or its Chief Financial Officer, dated warranties were made as of the Closing Date, certifying and the Shareholders shall have duly performed or complied with all of the obligations to be performed or complied with by them under the terms of this Agreement on or prior to Closing.
(b) The Shareholders shall have complied with and performed all agreements, covenants and conditions in this Agreement required to be performed and complied with by them on or before the Closing Date, and that all requisite action (corporate and other) in order to consummate this Agreement shall have been properly taken by the Shareholders.
(c) No Material adverse change shall have occurred in the condition (financial or otherwise) of the Corporations, their assets or business considered as a whole.
(d) The Purchaser shall have received from, counsel to the fulfillment Shareholders, an opinion of such counsel, dated the conditions specified Closing Date, in subsections (i), (ii), (iii) and(vii) of this Section 2.2(asubstantially the form attached hereto as Schedule 9.2(d).
(ve) All material authorizations, consents, waivers, approvals or other action required in connection with the execution, delivery and performance of this Agreement by the Shareholders and the consummation by the Shareholders of the transactions contemplated hereby, shall have been obtained, and the Corporations or the Shareholders shall have obtained any authorizations, consents, waivers, approvals or other action required in connection with the execution, delivery and performance of this Agreement to prevent a material breach or default by the Corporations or the Shareholders under any contract to which the Corporations or the Shareholders are a party or for the continuation of any agreement to which the Corporations are a party and which relates and is material to the business of the Corporations.
(f) The Company Shareholders shall have delivered a Certificateto the Purchaser all instruments of assignment, executed on behalf transfer and conveyance of the Company by its SecretaryPurchase Shares, dated including, without limitation, properly executed stock powers (assignments separate from certificate) and such other closing documents as of the Closing Date, certifying the resolutions adopted shall have been reasonably requested by the Board of Directors of the Company approving the transactions contemplated by this Agreement Purchaser, all in form and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as substance reasonably acceptable to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the CompanyPurchaser's counsel.
(vig) The Prospectus shall have been filed with At the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and Purchaser's option, the Purchaser shall have received resignations of the Prospectus directors and officers of the Corporations from their positions as such, together with releases of the Corporations by the Shareholders, directors and officers of any further liabilities or obligations which the Corporations may have to the Shareholders due to such relationship all in accordance with form and substance reasonably acceptable to the federal securities lawsPurchaser's counsel.
(viih) The Company’s Common Stock Corporations shall have kept in effect all existing policies of insurance covering their business, property and assets.
(including i) All amounts due the Shares Corporations from any Affiliates, officers or employees shall have been paid in full. All Taxes, to the extent due and payable, have been paid and brought current.
(j) The Purchaser shall have satisfactorily completed its due diligence review and audit of the Warrant Shares) Corporations' books and records and operations. The Purchaser shall be eligible for inclusion on deemed to have waived this condition precedent unless the Nasdaq Capital Market and listed and admitted and authorized for trading on Purchaser notifies the Nasdaq Capital MarketShareholders to the contrary before the Closing Date.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation obligations of each Purchaser to purchase the Shares Property from Seller and Warrants at to consummate the Closing is transactions contemplated by this Agreement are subject to the fulfillment satisfaction, at all times prior to and as of the Closing with respect to such Property or Parcel(s) thereof (or such other time period specified below), of each of the following conditions:
(a) All of the representations and warranties of Seller set forth in this Agreement shall be true at all times prior to, at and as of, the Closing in all material respects and Seller shall deliver a Closing Certificate in substantially the same form attached hereto as Exhibit D updating such representations and warranties.
(b) Seller shall have delivered, performed, observed and complied with, all of the items, instruments, documents, covenants, agreements and conditions required by this Agreement to be delivered, performed, observed and complied with by it prior to, or as of, the Closing.
(c) Seller shall not be in receivership or dissolution or have made any assignment for the benefit of creditors, or admitted in writing its inability to pay its debts as they mature, or have been adjudicated a bankrupt, or have filed a petition in voluntary bankruptcy, a petition or answer seeking reorganization or an arrangement with creditors under the federal bankruptcy law or any other similar law or statute of the United States or any state and no such petition shall have been filed against it.
(d) No material or substantial adverse change shall have occurred with respect to the Purchasers’ reasonable satisfactioncondition, on financial or otherwise, of the Seller or the Property.
(e) No material or substantial adverse change shall have occurred with respect to the condition, financial or otherwise, of the Sellers of the Property.
(f) Neither the Property nor any part thereof or interest therein shall have been taken by execution or other process of law in any action prior to Closing, nor shall any action or proceeding seeking any such taking be pending.
(g) Purchaser shall have completed its Investigations of the physical condition of the Property by agents or contractors selected by Purchaser and, in its sole discretion, shall have determined the results of such Investigations to be satisfactory or shall be deemed to have waived the Investigations by the expiration of the Review Period.
(h) Purchaser shall have received, in form reasonably acceptable to Purchaser and at Seller’s expense, an engineering report that evidences compliance by the Property with all building codes, zoning ordinances and other governmental entitlements (including, without limitation, the Americans with Disabilities Act) as necessary for the operation of the Property for the current and intended use, including, without limitation, certificates of occupancy (or evidence of the existence thereof) and such other permits, licenses, approvals, agreements and authorizations as are required for the operation of the Property for its current and intended use.
(i) All necessary approvals, consents and the like to the validity and effectiveness of the transactions contemplated hereby have been obtained. Purchaser has reviewed the Due Diligence Materials and, in its sole discretion, shall have determined the results of such review of the Due Diligence Materials to be satisfactory.
(j) No portion of the Property shall have been destroyed by fire or casualty.
(k) No condemnation, eminent domain or similar proceedings shall have been commenced or threatened in writing with respect to any portion of the Property.
(l) Tenant shall have executed and delivered such non-disturbance and attornment agreements and agreements subordinating the Lease to liens of Purchaser’s lenders in such form as is deemed commercially reasonable.
(m) Seller shall deliver to Purchaser estoppel certificates in such form as Purchaser may reasonably require, dated not more than thirty (30) days prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
from (i) The representations the Tenant under the Lease; (ii) such parties to reciprocal easement agreements or agreements of conditions, covenants and warranties made by the Company restrictions as Purchaser, in Section 3.1 hereof shall be true its sole discretion, deems necessary or appropriate, and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed (iii) such other parties as Purchaser, in all material respects all obligations and conditions herein required to be performed its sole discretion, deems necessary or observed by it on or prior to the Closing Dateappropriate.
(iin) The Company Purchaser and Seller shall have obtained in executed a timely fashion any Lease for each Parcel of Property being purchased;
(o) Guarantor shall have executed and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of delivered the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effectGuaranty to Purchaser.
(iiip) 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, Guarantor shall have been issuedexecuted and delivered the Guaranty of Sublease to Purchaser, if the Sublease is being entered into and no action or proceeding shall the Required Consents have been instituted by any governmental authority, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documentsobtained prior to Closing.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Option Agreement (Peak Resorts Inc)
Conditions to the Purchaser’s Obligations. The obligation ----------------------------------------- of each the Purchaser to purchase consummate the Shares and Warrants at the Closing transactions contemplated by this Agreement is subject to the fulfillment to satisfaction or waiver (if permissible under applicable law) of the Purchasers’ reasonable satisfaction, on or prior to following conditions as of the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by the Company set forth in Section 3.1 Articles IV and V hereof which are qualified as to "materiality" or "Material Adverse Effect" shall be true and correct except where in all respects, and the failure to representations and warranties set forth in Articles IV and V hereof which are not so qualified shall be so true and correct does not have a in all material respects, at and as of the Closing Date as though then made and as though the Closing Date was substituted for the date of this Agreement throughout such representations and warranties, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties which are qualified as to "materiality" or "Material Adverse Effect. " shall be true and correct in all respects, and such representations and warranties which are not so qualified shall be true and correct in all material respects, on and as of such earlier date);
(b) The Company shall have performed in all material respects all obligations of the covenants and conditions herein agreements required to be performed or observed by it on them under this Agreement at or prior to the Closing Date.Closing;
(iic) The Company shall have received or obtained in a timely fashion any all third party and all material consents, permits, approvals, registrations stockholder consents and waivers approvals that are necessary or appropriate for the consummation of the purchase transactions and sale the taking of the Shares and Warrantsactions contemplated under this Agreement or that are required as a result of the transactions contemplated hereby in order to prevent a breach of or default under, a termination or modification of, or acceleration of the terms of, any contract, agreement, lease or document to which the Company or a Subsidiary is a party or by which its assets are bound, including all of the consents which shall be are listed on the Restrictions Schedule or referred to in Section 3.01(k) below, in each case --------------------- --------------- on terms and remain so long as necessary in full force and effectconditions reasonably satisfactory to the Purchaser.
(iiid) No judgmentThe applicable waiting periods, writif any, order, injunction, award under the HSR Act shall have expired 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, been terminated and no objection to the transactions contemplated hereby shall have been issuedmade by the Federal Trade Commission of the Department of Justice, and no action or proceeding shall have been instituted by any all other material governmental authorityfilings, or self-regulatory organization enjoining or preventing consents, authorizations and approvals that are required to be made prior to the Effective Time for the consummation of the transactions contemplated hereby (all of which items are set forth on the Governmental Consents Schedule attached hereto) shall ------------------------------ have been made or in obtained (as the other Transaction Documentscase may be) on conditions, if any, reasonably satisfactory to Purchaser;
(e) No (i) action or proceeding before any court or government body shall be pending wherein an unfavorable judgment, decree or order would nor (ii) any statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any court or governmental authority which would, prevent the performance of this Agreement or the consummation of any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement or cause such transactions to be rescinded;
(f) Except as set forth on the Exceptions to Latest Balance ---------------------------- Sheet Schedule, since the date of the Latest Balance Sheet, the Company and its -------------- Subsidiaries will not have suffered any Material Adverse Effect.
(ivg) The Company HTI and/or the Surviving Corporation shall have delivered a Certificate, executed on behalf of consummated the Company by its Chief Executive Officer or its Chief Financial Officer, dated Debt Transactions in accordance with the commitment letters attached hereto as of Exhibit B in an amount sufficient to consummate the Closing Date, certifying to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the --------- transactions contemplated by this Agreement and the other Transaction Documents Recapitalization Agreement and to finance the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws continuing operations of the Company and certifying as its Subsidiaries in amounts and on terms reasonably satisfactory to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the CompanyPurchaser.
(vih) The Prospectus Purchaser shall have entered into a recapitalization agreement with Newco (the "Recapitalization Agreement") and consummated the -------------------------- transactions contemplated thereby in accordance with its terms.
(i) The Purchaser shall have received from Xxxxx & Xxxxx, counsel for the Company, an opinion covering customary matters, which shall be addressed to the Purchaser dated as of the Closing Date and in form and substance reasonably satisfactory to the Purchaser.
(j) All Options shall have been filed with duly terminated in a manner satisfactory to the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; Purchaser and the Purchaser shall have received an instrument or instruments evidencing the Prospectus in accordance with the federal securities lawssame.
(viik) The Company’s Common Stock (including following real estate related closing conditions shall have been satisfied in a manner satisfactory to the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.Purchaser:
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase consummate the Shares and Warrants transactions contemplated by this Agreement shall be subject to the delivery of the fulfillment prior to or at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by of the Company contained in Section 3.1 hereof 3 shall be true on and as of the Closing in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Closing, except for those representations and warranties which address matters only as of a particular date, which shall remain true and correct as of such particular date and except where the failure to be so true and correct does will not have a Material Adverse Effect. Effect on the Company.
(b) The Company shall have performed in and complied with all material respects all agreements, obligations and conditions herein contained in this Agreement that are required to be performed or observed complied with by it on or prior to before the Closing DateClosing.
(iic) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations permits and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents Registration Rights Agreement (except for such as may be properly obtained subsequent to the Closing).
(d) The Company shall have executed and delivered the issuance License Agreements.
(e) The Company shall have executed and delivered the Registration Rights Agreement.
(f) The Company shall have delivered the following closing documents in form and substance reasonably acceptable to the Purchaser's counsel:
(i) a copy of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf resolutions of the Company's Board of Directors authorizing (A) the execution, delivery and consummation of this Agreement, the Registration Rights Agreement, and the License Agreements and (B) transactions contemplated hereby and thereby; and
(ii) a certificate of the President of the Company, dated the Closing Date, certifying that the conditions specified in this Section 6.01 have been fulfilled and that as of the Closing Date, there has not been no Material Adverse Effect.
(vig) The Prospectus shall have been filed All corporate and other proceedings in connection with the Commission pursuant transactions contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued Purchaser's counsel, and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser Purchaser's counsel shall have received the Prospectus in accordance with the federal securities lawsall such counterpart originals or certified or other copies of such documents as they may reasonably request.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ista Pharmaceuticals Inc)
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser Purchaser’s obligations to purchase and pay for the Shares Note are subject to satisfaction, prior to or simultaneously with the Closing, of the following conditions:
(a) The Company and Warrants at the Purchaser shall have executed and delivered a Cross Receipt and Acknowledgment in substantially the form attached as Exhibit B.
(b) No litigation or proceeding shall be threatened or pending, and no statute, rule, regulation or order shall be in effect, enacted, adopted or issued by any Governmental Body, and no order or judgement of any court or arbitrator shall have been issued or be threatened, which would have the probable effect of preventing or materially hindering the consummation of any of the transactions contemplated by this Agreement and the Note.
(c) All required consents shall have been given or obtained, as the case may be, and the Closing is shall not be subject to any conditions subsequent not approved by the fulfillment to Purchaser.
(d) All proceedings taken in connection with the Purchasers’ reasonable satisfactionproper entry into, execution and delivery of this Agreement by the Company, the due authorization, issuance and sale of the Note by the Company and the consummation by the Company of the transactions contemplated hereby and thereby shall have occurred on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:Closing.
(ie) No Material Adverse Effect shall have occurred.
(f) The representations and warranties made by of the Company contained in Section 3.1 hereof this Agreement shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. in all material respects.
(g) The Company shall have performed in all material respects all its obligations under, and complied with all conditions herein required contained in, this Agreement. The Purchaser’s obligation to pay the total remaining amount of $1,500,000 under the Note shall be performed or observed by it on or prior subject to the Closing Date.
conditions set out in paragraphs (ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (ib), (iie), (iiif) and(viiand (g) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion above being satisfied on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Marketpayment date.
Appears in 1 contract
Samples: Note Purchase Agreement (Hologram USA Networks Inc.)
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser to purchase the Shares and Warrants Notes at the Closing is subject to the fulfillment to the PurchasersRequisite Holders’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the PurchasersRequisite Holders:
(ia) The representations and warranties made by the Company in Section 3.1 5 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except where to the failure to extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be so true and correct does as of such earlier date, and, the representations and warranties made by the Company in Section 5 hereof not have a Material Adverse Effectqualified as to materiality shall be true and correct in all material respects 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 in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing DateDate (including the delivery of the certificates representing the Notes in accordance with Section 4 hereof).
(iib) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares Notes including, without limitation, Shareholder Approval, the acceptance of TSX and Warrantsthe approval of AMEX, and all of which shall be and remain so long as necessary in full force and effect.
(iiic) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Note Documents.
(ivd) 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 (ia), (iib), (iii) and(viid), and (h) of this Section 2.2(a)7.1.
(ve) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Note Documents and the issuance of the Notes and the Common Shares and Warrantsupon conversion thereof, certifying the current versions of the Certificate Notice of Incorporation Articles and Bylaws Articles of the Company and certifying as to the signatures and authority of persons signing the Transaction Note Documents and related documents on behalf of the Company.
(vif) The Prospectus Purchasers shall have been filed with received (i) an opinion from Xxxxx & Xxxxxxx L.L.P., the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness Company’s U.S. counsel, dated as of the Registration Statement or any part thereof shall have been issued Closing Date, in the form attached hereto as Exhibit D-1; and no proceeding for that purpose shall have been initiated or threatened by (ii) an opinion from Bull, Housser & Xxxxxx LLP, the Commission; no Company’s Canadian counsel, dated as of the Closing Date, in the form attached hereto as Exhibit D-2.
(g) No stop order, cease trade order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities lawsShares.
(viih) The Company’s Common Stock (including Shares to be issued upon conversion of the Shares and the Warrant Shares) Notes shall be eligible have been approved for inclusion on the Nasdaq Capital Market AMEX and Toronto Stock Exchange and listed and admitted and authorized for trading on AMEX and Toronto Stock Exchange. Satisfactory evidence of such actions shall have been provided to the Nasdaq Capital MarketPlacement Agents.
(i) The Company shall have obtained the consent of JPMorgan Chase Bank, N.A. with respect to the consummation of the Private Placement and the transactions contemplated by the Note Documents and shall have deliver a written copy of such consent to the Purchasers.
(j) The Registration Rights Agreement and the Subordination Agreement are still in full force and effect.
Appears in 1 contract
Samples: Series B Note Purchase Agreement (Storm Cat Energy CORP)
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase consummate the Shares and Warrants at the Closing transactions contemplated by this Agreement is subject to the fulfillment to satisfaction of the Purchasers’ reasonable satisfaction, on or prior to following conditions as of the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by the Company set forth in Section 3.1 Article VI hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects (except that the representations and warranties which are qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all obligations respects) at and conditions herein as of the Closing Date as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties;
(b) The Seller shall have performed and complied in all material respects with all of the covenants and agreements required to be performed or observed by it the Seller under this Agreement on or prior to before the Closing Date.Closing;
(iic) The Company Seller shall have obtained repaired or replaced the items set forth in a timely fashion any Schedule 4.3;
(d) The Seller shall have completed and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation approved an inspection by the managers of each of the purchase and sale Restaurants; such inspections will be completed within 15 days of the Shares date hereof; provided, however, that the Seller will provide the Purchaser with reasonable notice of the date and Warrants, all time of which shall be each inspection and remain so long as necessary in full force and effect.will allow the Purchase to attend each such inspection;
(iiie) No judgmentAll governmental filings, 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, authorizations and no action or proceeding shall have been instituted by any governmental authority, or self-regulatory organization enjoining or preventing approvals that are required for the consummation of the transactions contemplated hereby or in shall have been duly made and obtained on terms reasonably satisfactory to the other Transaction Documents.Purchaser;
(ivf) The Company No action, suit, or proceeding shall have delivered a Certificatebe pending or threatened before any court or quasi-judicial or administrative agency of any federal, executed on behalf state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable judgment, decree, injunction, order, or ruling would prevent the performance of this Agreement or any of the Company by its Chief Executive Officer or its Chief Financial Officertransactions contemplated hereby, dated as of the Closing Date, certifying to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving declare unlawful the transactions contemplated by this Agreement Agreement, cause such transactions to be rescinded, or materially and adversely affect the right of the Purchaser to own, operate, or control the Restaurants, and no judgment, decree, injunction, order, or ruling shall have been entered which has or is reasonably likely to have any of the foregoing effects;
(g) Since the date hereof, there shall be no fact or circumstance which has had a Material Adverse Effect;
(h) The Purchaser and the other Transaction Documents Seller shall have entered into a Xxxx of Sale and Assumption Agreement in a form to be mutually agreed by the Seller and the issuance Purchaser.
(i) The Seller shall deliver to the Purchaser all information relating to the Seller which may be required to be reported by the Purchaser or its paying agent to any taxing authority pursuant to Section 6043A of the Shares Code or any similar provision of law, in connection with the transactions contemplated by this Agreement;
(j) The Purchaser, the Seller, the Seller Guarantors, the Purchaser Guarantors and Warrants, certifying GE will have concurrently with the current versions Closing executed all documents and taken all actions necessary to enter into the GE Modified Loan Arrangement in a form satisfactory to Purchaser;
(k) If the parties enter into the Textron Modified Loan Arrangement in order to satisfy the payment of the Certificate Purchase Price pursuant to Section 3.2, the Purchaser, the Seller, the Seller Guarantors, the Purchaser Guarantors and Textron will have concurrently with the Closing executed all documents and taken all actions necessary to enter into the Textron Modified Loan Arrangement in a form satisfactory to Purchaser;
(l) All Liens, other than Permitted Liens Purchased Assets, shall have been terminated and be of no further force and effect; and
(m) The Seller shall have delivered to Purchaser all of the following:
(i) a certificate from the President or Chief Executive Officer of the Seller in a form reasonably satisfactory to the Purchaser, dated the Closing Date, stating that the preconditions specified in this Section 4.3 have been satisfied;
(ii) a copy of (A) the resolutions of the board of directors and shareholders of the Seller approving the transaction and (B) a copy of the Articles of Incorporation and Bylaws for the Seller, each as certified by the Secretary of the Company and certifying Seller;
(iii) certificates from appropriate authorities, dated as of or within ten business days prior to the Closing Date, as to the signatures good standing and authority of persons signing the Transaction Documents and related documents on behalf qualification to do business of the Company.Seller in the State of California;
(iv) copies of the consents, filings, authorizations and approvals described in Sections 4.2(c) and (d) to the extent applicable to the Seller;
(v) an executed copy of the Xxxx of Sale;
(vi) The Prospectus shall proof that all real and personal property taxes upon the Purchased Assets which are due and payable as of the Closing have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement paid or any part thereof shall adequate reserves have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.be established therefor;
(vii) The Companya policy of title insurance regarding each Restaurant insuring leasehold title to such properties and containing only such exceptions and exclusions as could not, in the Purchaser’s Common Stock (including reasonable discretion, substantially adversely affect the Shares operation of the location as a Restaurant and the Warrant Sharestransfer of title to the Purchaser; and
(viii) such other documents or instruments as the Purchaser may reasonably request to effect the transactions contemplated hereby.
(n) The Alcoholic Beverage License Assets will have been approved for transfer to the Purchaser by the ABC; provided, however, that if the ABC fails to approve the transfer of the Alcoholic Beverage License Assets it shall not (i) constitute a default under this Agreement, (ii) effect or impair the terms or conditions of this Agreement and (iii) provide Purchaser with any right to rescind, cancel or modify the Agreement, and the condition set forth in this Section 4.3(n) will be automatically waived by the Purchaser and will have no further force and effect and the Closing will occur absent the transfer of the Alcoholic Beverage Licenses and without any reduction in the Purchase Price and there shall be eligible for inclusion on no transfer of the Nasdaq Capital Market and listed and admitted and authorized for trading on Alcoholic Beverage License Assets. Any condition specified in this Section 4.3 may be waived by the Nasdaq Capital MarketPurchaser in its sole discretion; provided that no such waiver shall be effective unless it is set forth in a writing executed by the Purchaser.
Appears in 1 contract
Samples: Asset Purchase Agreement (Custom Restaurant & Hospitality Group, Inc.)
Conditions to the Purchaser’s Obligations. The obligation obligations of each Purchaser to purchase the Shares Property from Seller and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(i) The representations and warranties made by the Company in Section 3.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving consummate the transactions contemplated by this Agreement are subject to the satisfaction, at all times prior to and the other Transaction Documents and the issuance as of the Shares and WarrantsClosing (or such other time period specified below), certifying the current versions of each of the Certificate of Incorporation and Bylaws following conditions:
a. All of the Company representations and certifying warranties of Seller set forth in this Agreement shall be true at all times prior to, at and as to of, the signatures Closing in all material respects and authority of persons signing Seller shall deliver a Closing Certificate in substantially the Transaction Documents same form attached hereto as Exhibit D updating such representations and related documents on behalf warranties.
b. Seller shall have delivered, performed, observed and complied with, all of the Companyitems, instruments, documents, covenants, agreements and conditions required by this Agreement to be delivered, performed, observed and complied with by it prior to, or as of, the Closing.
(vi) The Prospectus c. Seller shall not be in receivership or dissolution or have made any assignment for the benefit of creditors, or admitted in writing its inability to pay its debts as they mature, or have been adjudicated a bankrupt, or have filed a petition in voluntary bankruptcy, a petition or answer seeking reorganization or an arrangement with creditors under the federal bankruptcy law or any other similar law or statute of the United States or any state and no such petition shall have been filed against it.
d. No material or substantial adverse change shall have occurred with respect to the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness condition, financial or otherwise, of the Registration Statement Seller or the Property.
e. Neither the Property nor any part thereof or interest therein shall have been issued and no proceeding for that purpose taken by execution or other process of law in any action prior to Closing.
f. Seller shall have been initiated obtained and delivered to Purchaser a current report, dated no more than ten (10) days prior to this Agreement, from a licensed pest control company reasonably acceptable to Purchaser, and which must show the Property to be free of all termite, or threatened by other destructive insect and pest infestation.
g. During the Commission; no stop order or suspension of trading Review Period, Purchaser shall have been imposed by any Person satisfactorily completed an inspection of the Property with respect to public trading in the Common Stock; and physical condition thereof by agents or contractors selected by Purchaser.
h. During the Review Period, Purchaser shall have received received, in form acceptable to Purchaser, evidence of compliance by the Prospectus in accordance Property with all building codes, zoning ordinances and other governmental entitlements as necessary for the federal securities laws.
(vii) The Company’s Common Stock (including operation of the Shares Property for the current and intended use, including, without limitation, certificates of occupancy and such other permits, licenses, approvals, agreements and authorizations as are required for the Warrant Shares) shall be eligible for inclusion on operation of the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.Property
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Correctional Properties Trust)
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser to purchase the Shares and the Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable such Purchaser's satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:such Purchaser (as to itself only):
(i) The representations and warranties made by the Company in Section 3.1 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except where to the failure to extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be so true and correct does as of such earlier date, and, the representations and warranties made by the Company in Section 3 hereof not have a Material Adverse Effectqualified as to materiality shall be true and correct in all material respects 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 in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and conditions covenants herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares Securities and Warrantsthe consummation of the other transactions contemplated by the Transaction Documents, all of which shall be and remain so long as necessary in full force and effect.
(iii) The Company shall have executed and delivered the Registration Rights Agreement.
(iv) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(ivv) 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 (i), (ii), (iiiiv) and(viiand (viii) of this Section 2.2(a2.3(a).
(vvi) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and WarrantsSecurities, certifying the current versions of the Certificate of Incorporation 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.
(vivii) The Prospectus Purchasers shall have been filed with received an opinion from Ellenoff, Gxxxxxxx & Schole LLP, the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness Company's counsel, dated as of the Registration Statement or any part thereof shall have been issued Closing Date, in form and no proceeding for that purpose shall have been initiated or threatened by substance reasonably acceptable to the Commission; no Purchasers and addressing such legal matters as the Purchasers may reasonably request.
(viii) No stop order or suspension of trading shall have been imposed by Nasdaq, the SEC or any Person other governmental or regulatory body with respect to public trading in the Common Stock; and the .
(ix) The Purchaser shall have received a certificate evidencing the Prospectus number of Shares equal to such Purchaser’s Subscription Amount divided by the Per Share Purchase Price, registered in accordance with the federal securities lawsname of such Purchaser.
(viix) The Company’s Purchaser shall have received a Warrant, registered in the name of such Purchaser, pursuant to which such Purchaser shall have the right to acquire up to the number of shares of Common Stock (including equal to 50% of the Shares and to be issued to such Purchaser at the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital MarketClosing.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation obligations of each Purchaser to purchase the Shares Property from Seller and Warrants at to consummate the Closing is transactions contemplated by this Agreement are subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to as of the Closing DateClosing, of each of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The All of the representations and warranties made by the Company of Seller set forth in Section 3.1 hereof this Agreement shall be true and correct except where as of the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed Closing in all material respects all obligations and conditions herein required to be performed except for changes expressly permitted or observed contemplated by it on or prior to the Closing Dateterms of this Agreement.
(b) Seller and Guarantor shall have delivered, performed, observed and complied in all material respects with all of the items, instruments, documents, covenants, agreements and conditions required by this Agreement to be delivered, performed, observed and complied with by Seller or Guarantor prior to, or as of, the Closing.
(c) Neither Seller nor Guarantor shall be in receivership or dissolution proceedings or have made any assignment for the benefit of creditors, or admitted in writing its inability to pay its debts as they mature, or have been adjudicated as bankrupt, or have filed a petition in voluntary bankruptcy, a petition or answer seeking reorganization or an arrangement with creditors under the federal bankruptcy law or any other similar law or statute of the United States or any state and no such petition shall have been filed against it; and neither Seller nor Guarantor shall be in default with respect to any Indebtedness in the outstanding amount of (i) in the case of Seller, at least $50,000, and (ii) The Company in the case of Guarantor, at least $1,000,000.
(d) No material or substantial change shall have obtained occurred with respect to the condition, financial or otherwise, of the Property, Seller or Guarantor.
(e) Neither the Property nor any part thereof or interest therein shall have been taken by execution or other process of law in a timely fashion any action prior to Closing.
(f) Purchaser shall be reasonably satisfied with its inspection of the Property with respect to the physical condition thereof by agents or contractors selected by Purchaser.
(g) Purchaser shall have received, in form acceptable to Purchaser, evidence of compliance by the Property with all Permits required as of the Effective Date hereof and all material consents, permits, approvals, registrations and waivers such other Permits as may be necessary or appropriate for consummation the operation of the purchase Property for the current and sale of the Shares intended use and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving for the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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 CompanyLease.
(vih) The Prospectus All necessary approvals, consents and the like of third parties to the validity and effectiveness of the transactions contemplated hereby shall have been filed obtained.
(i) Purchaser shall be reasonably satisfied that the Property is sufficient and adequate for Seller to carry on the business now being conducted thereon and that the Property is in good condition and repair as reasonably required for the proper operation and use thereof in compliance with applicable Laws and the Commission requirements of applicable accreditation and licensing authorities.
(j) Purchaser shall be satisfied with all matters regarding title and survey pursuant to Rule 424(bArticle V hereof.
(k) under Purchaser shall have obtained an environmental site assessment report covering the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness Property in form and content acceptable to Purchaser.
(l) No portion of the Registration Statement or any part thereof Property shall have been issued and no destroyed by fire or casualty.
(m) No condemnation, eminent domain or similar proceeding for that purpose shall have been initiated commenced or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in any portion of the Common Stock; and the Property.
(n) Purchaser shall have received an appraisal satisfactory to Purchaser in all respects, including without limitation a fair market value substantially equivalent to the Prospectus in accordance with the federal securities lawsPurchase Price.
(viio) The Company’s Common Stock Seller shall have provided such representations, warranties and consents as may be reasonably required by the United States Securities and Exchange Commission (including but not limited to inclusion of financial statements, financial information and other required information concerning Seller or any affiliate of Seller in any United States Securities and Exchange Commission filings made by Purchaser or any affiliate of Purchaser).
(p) Capstone Capital Corporation or an affiliate shall have entered into an Agreement of Sale and Purchase with Mesa Psychiatric Hospital, Inc., an Arizona corporation ("Mesa"), for the Shares purchase of property constituting Desert Vista Hospital in Mesa, Arizona, and the Warrant Shares) there shall be eligible for inclusion exist no event of default thereunder on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Marketpart of Mesa.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Ramsay Health Care Inc)
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase the Shares Notes and the Warrants at the Closing is contemplated by this Agreement shall be subject to the fulfillment to the Purchasers’ reasonable satisfaction, on at or prior to the Closing DateClosing, of the following conditions, any of which may be waived in writing by the Purchasers:
(a) On the Closing Date and also after giving effect to the sale of the Notes on such date (i) The there shall exist no Default or Event of Default, (ii) all representations and warranties made by contained herein and in the Company in Section 3.1 hereof other Transaction Documents shall be true and correct except where the failure to in all material respects (it being understood and agreed that any representation or warranty which by its terms is (A) qualified by materiality or Material Adverse Effect shall be so true and correct does not have in all respects and (B) made as of a Material Adverse Effect. The specified date shall be required to be true and correct in all respects or material respects, as the case may be, only as of such specified date) and (iii) the Company shall have performed and complied in all material respects with all obligations agreements, covenants and conditions herein required to be performed or observed and complied with by it on under the Transaction Documents at or prior to before the Closing DateClosing.
(iib) The Company Purchaser shall have obtained in received a timely fashion any certificate, dated the Closing Date and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) The Company shall have delivered a Certificate, executed signed on behalf of the Company by its Chief Executive Officer or its Chief Financial Officerthe chief executive officer and chief financial officer, certifying on behalf of the Company that all of the conditions in Sections 1.6(a), (f), (g) and (h) have been satisfied on such date.
(c) Purchaser shall have received from The Law Offices of SEC Attorneys, counsel to the Company, an opinion addressed to Purchaser and dated the Closing Date covering such matters incident to the transactions contemplated herein as the Purchaser may reasonably request.
(d) Purchaser shall have received a certificate of the Secretary of the Company and attested to by an executive officer of the Company, dated as of the Closing Date, certifying as to (i) the fulfillment Certificate of Incorporation and By-laws of the conditions specified in subsections (i)Company, (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by of the Board of Directors of the Company approving authorizing the execution, delivery and performance of this Agreement and the issuance of the Securities and (iii) the incumbency of the officers duly authorized to execute this Agreement and the other documents contemplated by this Agreement.
(e) On the Closing Date, all corporate and legal proceedings and all instruments and agreements in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall be reasonably satisfactory in form and the issuance substance to Purchaser, and Purchaser shall have received all information and copies of the Shares all documents and Warrantspapers, certifying the current versions including records of the Certificate of Incorporation corporate proceedings, Governmental Approvals, good standing certificates and Bylaws of the Company bring-down telegrams or facsimiles, if any, which Purchaser reasonably may have requested in connection therewith, such documents and certifying as papers where appropriate to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Companybe certified by proper corporate officials or Governmental Entities.
(vif) The Prospectus Nothing shall have occurred since the date of the Balance Sheet (and Purchaser shall have not have become aware of any facts or conditions not previously known) which has had, or could reasonably be expected to have, (i) a Material Adverse Effect or (ii) a material adverse effect on the transactions contemplated hereby.
(g) All necessary governmental and third party approvals and/or consents in connection with the transactions contemplated hereby shall have been filed obtained and remain in effect, except for such filings with the Commission pursuant to Rule 424(b) SEC under the Securities Act within and with any state or foreign securities regulatory authority under any applicable state or foreign securities or “blue sky” laws as may be required to be made by the Company, and all applicable time period prescribed for such filing; no stop order suspending waiting periods with respect thereto shall have expired without any action being taken by any competent authority which restrains, prevents or imposes materially adverse conditions upon the effectiveness consummation of the Registration Statement transactions contemplated hereby. On the Closing Date, there shall not exist any judgment, order, injunction or any part thereof other restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or notified prohibiting or imposing materially adverse conditions upon the transactions contemplated hereby.
(h) On the Closing Date, there shall have been issued and be no proceeding for that purpose shall have been initiated actions, suits or proceedings pending or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person (a) with respect to public trading the transactions contemplated hereby, this Agreement or any other Transaction Document, or (b) which has had, or could reasonably be expected to have, a Material Adverse Effect.
(i) Each of the chief executive officer and chief financial officer of the Company shall have executed and delivered Rule 10b-5 letters, in the Common Stock; form and the substance reasonably acceptable to Purchaser.
(j) Purchaser shall have received the Prospectus in accordance with the federal securities lawsNotes purchased by Purchaser.
(viik) Purchaser shall have received the Warrants purchased by Purchaser.
(l) The Company’s Common Stock Company shall have executed and delivered a registration rights agreement, in form and substance reasonably acceptable to Purchaser (the “Registration Rights Agreement”).
(m) The Company and each Subsidiary shall have executed and delivered a Security Agreement, along with all of the Security Documents, including the Shares Subsidiary Guarantees, and all UCC-1 forms and other documentation required to perfect the Warrant Sharessecurity interests shall have been filed.
(n) The Company shall be eligible for inclusion on have consummated its acquisition of AudioEye, Inc.
(o) The Company shall have received from JT Ventures an executed payoff letter reflecting that all outstanding Indebtedness owed by the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital MarketCompany to JT Ventures has been paid in full.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser to purchase the Shares and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:such Purchaser (as to itself only):
(ia) The representations and warranties made by the Company in Section 3.1 4 hereof shall be true and correct in all material respects (except where the failure to for those representations and warranties that are qualified by materiality or Material Adverse Change, which shall be so true and correct does not have a in all respects) as of the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse EffectChange, which shall be true and correct in all respects) as of such earlier date. The Company shall have performed in all material respects all obligations and conditions covenants herein required to be performed or observed by it on or prior to the Closing Date.
(iib) The Company shall have obtained performed, satisfied and complied in a timely fashion any and all material consentsrespects with all covenants, permitsagreements and conditions required by the Transaction Documents to be performed, approvals, registrations and waivers necessary satisfied or appropriate for consummation of complied with by it at or prior to the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effectClosing Date.
(c) a Certificate of the Secretary of the Company, dated as of the Closing Date, shall be delivered (i) certifying the resolutions adopted by the Board of Directors of the Company and any duly authorized committee thereof relating to the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Securities, (ii) certifying the current versions of the certificate of incorporation, as amended, and bylaws of the Company and (iii) certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company, in form and substance reasonably acceptable to the Purchasers (the “Secretary’s Certificate”);
(d) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, in each case having authority over the Company or its subsidiaries, or any order of or by any applicable governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(ive) 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 (ia) and (b), (ii), (iii) and(vii) of this Section 2.2(a)6.1.
(vf) The Company Purchasers shall have delivered a Certificate, executed on behalf received an opinion of (i) Company Counsel dated as of the Closing Date and (ii) Company by its SecretaryIntellectual Property Counsel, each in a form and substance reasonably acceptable to the Purchasers.
(g) The Purchasers shall have received from Pxxxxx & Mxxxx, PLLC, independent registered public accountants for the Company, a letter dated as of the Closing Date, certifying in form and substance satisfactory to the resolutions adopted by the Board of Directors Purchasers, containing statements and information of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of the Shares and WarrantsAuditing Standards No. 72 (or any successor bulletin), certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as with respect to the signatures audited and authority of persons signing unaudited financial statements and certain financial information contained in the SEC Filings.
(h) The Company shall have executed and delivered the Transaction Documents and related documents on behalf of the Companyto each Purchaser.
(vii) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no No stop order or suspension of trading shall have been imposed or threatened in writing by the Trading Market, FINRA, the SEC or any Person other governmental or regulatory body with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser to purchase the Shares and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:such Purchaser (as to itself only):
(ia) The representations and warranties made by the Company in Section 3.1 4 hereof shall be true and correct in all material respects (except where the failure to for those representations and warranties that are qualified by materiality or Material Adverse Change, which shall be so true and correct does not have a in all respects) as of the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse EffectChange, which shall be true and correct in all respects) as of such earlier date. The Company shall have performed in all material respects all obligations and conditions covenants herein required to be performed or observed by it on or prior to the Closing Date.
(iib) The Company shall have obtained performed, satisfied and complied in a timely fashion any and all material consentsrespects with all covenants, permitsagreements and conditions required by the Transaction Documents to be performed, approvals, registrations and waivers necessary satisfied or appropriate for consummation of complied with by it at or prior to the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effectClosing Date.
(c) a Certificate of the Secretary of the Company, dated as of the Closing Date, shall be delivered (i) certifying the resolutions adopted by the Board of Directors of the Company and any duly authorized committee thereof relating to the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares, (ii) certifying the current versions of the certificate of incorporation, as amended, and bylaws of the Company and (iii) certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company, in form and substance reasonably acceptable to the Purchasers (the “Secretary’s Certificate”);
(d) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, in each case having authority over the Company or its subsidiaries, or any order of or by any applicable governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(ive) 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 (ia) and (b), (ii), (iii) and(vii) of this Section 2.2(a)6.1.
(vf) The Purchasers shall have received an opinion of (i) Company Counsel dated as of the Closing Date and (ii) Company Intellectual Property Counsel, each in a form and substance reasonably acceptable to the Purchasers.
(g) The Company shall have executed and delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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 Companyto each Purchaser.
(vih) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no No stop order or suspension of trading shall have been imposed or threatened in writing by the Trading Market, FINRA, the SEC or any Person other governmental or regulatory body with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser to purchase the Shares and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(i) The representations and warranties made by the Company in Section 3.1 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except where to the failure to extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be so true and correct does as of such earlier date, and, the representations and warranties made by the Company in Section 3.1 hereof not have a Material Adverse Effectqualified as to materiality shall be true and correct in all material respects 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 in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing DateDate (including the delivery of the certificates representing the Shares and the delivery of the Warrants in accordance with Section 2.1 hereof).
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) The Company shall have executed and delivered the Registration Rights Agreement to the Purchasers.
(iv) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(ivv) 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 (i), (ii), (iiiiv), (viii) and(viiand (ix) of this Section 2.2(a).
(vvi) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vivii) The Prospectus Purchasers shall have been filed with received an opinion from Company Counsel, in the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness form of Exhibit C attached hereto, dated as of the Registration Statement or any part thereof Closing Date, which shall have been issued and no proceeding for that purpose shall have been initiated or threatened by be reasonably satisfactory to the Commission; no Lead Investor Counsel.
(viii) No stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(viiix) No consent of the stockholders of the Company shall be required to issue the Shares relating to such aggregate Subscription Amounts.
(x) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital MarketMarket by the Effectiveness Date, as such term is defined in the Registration Rights Agreement by and between the Company and the Purchasers of even date herewith.
Appears in 1 contract
Samples: Securities Purchase Agreement (Focus Enhancements Inc)
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser Purchaser's obligations to purchase the Purchased Shares and Warrants to take the other actions required to be taken by it at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on at or prior to the Closing DateClosing, of each of the following conditions, conditions (any of which may be waived in writing by the Purchasers:Purchaser, in whole or in part):
(ia) The representations and warranties made by of the Company contained in Section 3.1 hereof this Agreement shall be true on and correct as of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing Date, except where to the failure extent any such representations and warranties are stated to be so made as of a specific date, in which case they shall be true as of such date, except in each case for any inaccuracies in such representations and correct does warranties as would not have a Material Adverse Effectmaterial adverse effect on the Company. The In addition, the Company shall have performed in all material respects all obligations and conditions herein required pursuant to the terms of this Agreement to be performed or observed by it on or prior to the Closing DateClosing.
(iib) The Company shall have delivered to the Purchaser a certificate, executed by an executive officer of the Company, dated the date of the Closing, setting forth the Company's representation that the conditions set forth in Section 4.1(a) above shall have been satisfied.
(c) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations waivers and waivers approvals necessary or appropriate for consummation of the purchase and sale of Transactions (except for such as may be properly obtained subsequent to the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effectClosing).
(iiid) No judgmentThere shall be no injunction, writ, order, injunction, award preliminary restraining order or decree other order in effect of or any nature issued by any court, or judge, justice or magistrate, including any bankruptcy a court or judge, or any order governmental agency of or by any governmental authority, shall have been issued, and no competent jurisdiction directing that the Transactions not be consummated in the manner provided for in this Agreement. No action or proceeding shall have been instituted by and remain pending before a court or other governmental body of competent jurisdiction to restrain, prohibit or otherwise challenge any governmental authority, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby Transactions (or in seeking material damages from the Purchaser or the Company as a result thereof), other Transaction Documentsthan any such action or proceeding which would not have a material adverse effect on the Company or prevent the Company or the Purchaser from performing their respective obligations hereunder.
(ive) The Company shall have delivered to the Purchaser a Certificatelegal opinion from counsel to the Company, executed on behalf of in form and substance reasonably satisfactory to the Company by Purchaser and its Chief Executive Officer counsel and addressing the matters listed in EXHIBIT C hereto (f) On or its Chief Financial Officer, dated as of prior to the Closing Date, certifying to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received a certificate of the Prospectus in accordance with Secretary of State of the federal securities lawsState of Delaware, dated as of a recent date, as to the good standing of the Company.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each the ----------------------------------------- Purchaser to purchase consummate the Shares and Warrants at the Closing transactions contemplated by this Agreement is subject to the fulfillment satisfaction of the following conditions as of the Closing Date:
(a) The representations and warranties set forth in Article V and Article VI hereof shall be true and correct in all material respects at and as of the Closing Date as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties (without taking into account any disclosures made by the Company or the Sellers to the Purchasers’ reasonable satisfactionPurchaser pursuant to Sections 4.1(g), 5.23 and 6.5 hereof);
(b) The Company and each Seller shall have performed and complied with all of the covenants and agreements required to be performed by each of them under this Agreement on or prior to the Closing;
(c) All consents by third parties that are required for the transfer of the Acquired Stock to the Purchaser, and the consummation of the other transactions contemplated hereby or that are required in order to prevent a breach of, a default under, a termination or modification of, or any acceleration of, any obligations under any material contract to which the Company is a party shall have been obtained, and payoff letters with respect to all of the Company's Indebtedness outstanding as of the Closing and releases of any and all Liens held by third parties against property of the Company shall have been obtained, all on terms reasonably satisfactory to the Purchaser (which payoff letters and releases shall only be effective if the amounts owing thereunder are paid by the Purchaser or the Company at the Closing).
(d) All governmental filings, authorizations and approvals that are required for the transfer of the Acquired Stock to the Purchaser and the consummation of the other transactions contemplated hereby shall have been duly made and obtained on terms reasonably satisfactory to the Purchaser;
(e) No action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable judgment, decree, injunction, order or ruling would prevent the performance of this Agreement or any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement, cause such transactions to be rescinded or materially and adversely affect the right of the Purchaser to own, operate or control the Company and no judgment, decree, injunction, order or ruling shall have been entered which has any of the foregoing effects;
(f) Except as otherwise specified in writing by the Purchaser to the Representative, all of the Company's directors and officers shall have resigned and such resignations shall be effective as of the Closing Date;
(g) The Company and each of Xxxx Xxxxxxx and Xxxxx Xxxxxxx shall have entered into an agreement relating to his employment with the Company (the "Employment Agreements"), substantially in the form of Exhibit A attached ---------------------- --------- hereto, and the Employment Agreements shall be in full force and effect;
(h) The Purchaser shall have received an opinion, dated the Closing Date, of Xxxxxx X. Xxxxxx, counsel to the Company and the Sellers, substantially in the form of Exhibit C attached hereto; ---------
(i) The Sellers shall have caused the Company to enter into a lease agreement with Xxxxx and Xxxx Limited Liability Company, with respect to the facility from which the Company now conducts its business (the "Lease"), ----- substantially in the form of Exhibit B attached hereto, and the Lease shall be --------- in full force and effect;
(j) On or prior to the Closing Date, the Sellers shall have delivered to Purchaser all of the following conditions, any of which may be waived in writing by the Purchasersfollowing:
(i) The representations and warranties made by a certificate from the Company Sellers in Section 3.1 hereof shall be true and correct except where a form reasonably satisfactory to the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to Purchaser, dated the Closing Date., stating that the preconditions specified in Sections 3.1(a) through (j) have been satisfied;
(ii) The Company shall have obtained in a timely fashion any copies of all third party and all material governmental consents, permits, approvals, registrations filings, releases and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary terminations required in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing connection with the consummation of the transactions contemplated hereby or in herein;
(iii) certified copies of the other Transaction Documents.resolutions of the landlord approving the Lease;
(iv) The Company shall have delivered a Certificatewith respect to the Company, executed on behalf certificates of the Company by its Chief Executive Officer or its Chief Financial Officer, dated as secretary of state of the Closing Date, certifying Commonwealth of Massachusetts and each state where such company is required to the fulfillment of the conditions specified qualify to do business providing that such company is in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).good standing in such jurisdiction;
(v) The Company shall have delivered a Certificate, executed on behalf copies of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.resignations described in Section 3.1(f);
(vi) The Prospectus shall have been filed with all documents and records relating to the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness business of the Registration Statement or Company that are in any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.Seller's possession;
(vii) a landlord consent and estoppel certificate from the Company's landlord in form and substance satisfactory to the Purchaser; and
(viii) such other documents or instruments as the Purchaser may reasonably request to effect the transactions contemplated hereby;
(k) The Purchaser shall have obtained on terms and conditions satisfactory to it all of the debt and equity financing required in order to consummate the transactions contemplated hereby, and to fund the working capital requirements of the Company after the Closing;
(l) The Purchaser shall be satisfied in its sole discretion with the results of its business, accounting, insurance, environmental and legal due diligence review of the Company’s Common Stock ; and
(including m) All proceedings to be taken by the Shares Company and each Seller in connection with the consummation of the Closing Transactions and the Warrant Shares) other transactions contemplated hereby and all certificates, opinions, instruments and other documents required to be delivered by the Company and each Seller to effect the transactions contemplated hereby reasonably requested by the Purchaser shall be eligible for inclusion on reasonably satisfactory in form and substance to the Nasdaq Capital Market and listed and admitted and authorized for trading on Purchaser. Any condition specified in this Section 3.1 may be waived by the Nasdaq Capital MarketPurchaser; provided that no such waiver shall be effective unless it is set forth in a writing executed by the Purchaser.
Appears in 1 contract
Samples: Stock Purchase Agreement (National Equipment Services Inc)
Conditions to the Purchaser’s Obligations. The obligation obligations of each the Purchaser to purchase the Shares Personal Property from the Sellers and Warrants at to consummate the Closing is transactions contemplated by this Agreement are subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to as of the Closing DateClosing, of each of the following conditions:
(a) All of the representations and warranties of the Sellers set forth in this Agreement shall be true both when made and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date) in all material respects and the Sellers shall deliver a Closing Certificate in substantially the form attached hereto as Appendix D.
(b) The Sellers shall have delivered, performed, observed and complied with all of the items, instruments, documents, covenants, agreements and conditions required by this Agreement and the Contribution Agreement to be delivered, performed, observed and complied with by any of which may the Sellers prior to, or as of, the Closing.
(c) No Seller shall be waived in receivership or dissolution or have made any assignment for the benefit of creditors, or admitted in writing its inability to pay its debts as they mature, or have been adjudicated a bankrupt, or have filed a petition in voluntary bankruptcy, a petition or answer seeking reorganization or an arrangement with creditors under the federal bankruptcy law or any other similar law or statute of the United States or any state and no such petition shall have been filed against it.
(d) No adverse change shall have occurred with respect to the condition, financial or otherwise, of any Seller, the Business, the Personal Property or the Real Property which would reasonably be expected to have a Material Adverse Change.
(e) Neither the Personal Property nor the Real Property, nor any part thereof or interest therein, shall have been taken by execution or other process of law in any action prior to Closing, nor shall any action or proceeding seeking any such taking be pending.
(f) All necessary approvals, consents and the Purchasers:like of third parties to the validity and effectiveness of the transactions contemplated hereby have been obtained (except with respect to the Assigned Contracts).
(g) No material portion of the Personal Property or the Real Property shall have been destroyed by fire or casualty.
(h) No condemnation, eminent domain or similar proceedings shall have been commenced or threatened in writing with respect to any material portion of the Real Property.
(i) The representations and warranties made by Sellers shall have delivered to the Company and the Purchaser the Ground Lessor Estoppel in Section 3.1 hereof shall be true and correct except where substantially the failure to be so true and correct does same form attached as Appendix I, dated not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or more than ten (10) days prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Amc Entertainment Inc)
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser hereunder to purchase the its Funded Shares and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on satisfaction (or prior to the Closing Date, waiver by each Purchaser) of each of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by of the Company Corporation in Section 3.1 hereof shall be true and correct except where as of the failure date of this Agreement and as of the Closing Date, as though made on and as of such date, and the Corporation shall have complied with all its agreements contained herein and the Corporation shall have performed, satisfied and complied with all covenants, agreements and conditions required by this Agreement, the schedules and exhibits attached hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder (collectively, the “Transaction Documents”) to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed performed, satisfied or observed complied with by it on at or prior to the Closing, and the Corporation shall have furnished to the Purchasers a certificate, dated the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) The Company shall have delivered a Certificateapplicable, executed on behalf of the Company Corporation by each of its Chief Executive Officer or its and Chief Financial Officer, certifying as to the foregoing.
(b) The Corporation shall have furnished to the Purchasers a certificate, dated as of the Closing Date, certifying to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company Corporation by each of its SecretaryChief Executive Officer and Chief Financial Officer, dated certifying that such officers have examined the Financial Statements (as defined in Section 3.1(e) hereof) and, in their opinion (except to the extent superseded by statements in later-prepared documents comprising part of the Financial Statements and delivered to the Purchasers), as of such date, the Financial Statements do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, with respect to the respective periods covered by such Financial Statements.
(c) From the date hereof to the Closing Date, certifying there shall not have occurred any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the resolutions adopted by date hereof but which become known during such period) that, individually or in the Board aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect (for purposes of Directors this Agreement, “Material Adverse Effect” means a material adverse effect on (i) the business, results of operation or financial condition of the Company approving Corporation and its Subsidiaries taken as a whole; provided, however, that the term Material Adverse Effect shall not for purposes of this clause (i) be deemed to include the effects of (A) changes after the date of this Agreement (the “Signing Date”) in general business, economic or market conditions (including changes generally in prevailing interest rates, credit availability and liquidity, currency exchange rates and price levels or trading volumes in the United States or foreign securities or credit markets), or any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism, in each case generally affecting the industries in which the Corporation and its Subsidiaries operate, (B) changes or proposed changes after the Signing Date in generally accepted accounting principles in the United States (“GAAP”) or regulatory accounting requirements, or authoritative interpretations thereof, or (C) changes or proposed changes after the Signing Date in securities, banking and other laws of general applicability or related policies or interpretations of Governmental Authorities (in the case of each of these clauses (A), (B) and (C), other than changes or occurrences to the extent that such changes or occurrences have or would reasonably be expected to have a materially disproportionate adverse effect on the Corporation and its Subsidiaries taken as a whole relative to comparable U.S. banking or financial services organizations); or (ii) the ability of the Corporation to consummate the transactions contemplated by this Agreement hereby and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents perform its obligations hereunder on behalf of the Companya timely basis.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The Purchaser’s obligation of each Purchaser to purchase pay for the Shares and Warrants at the Closing is Notes shall be subject to the fulfillment following conditions, any one or more of which may be waived by the Purchaser:
(a) each of the representations and warranties of the Company made herein shall be accurate in all material respects as of the Closing Date and the Company shall have performed or satisfied in all material respects the covenants made by it in this Agreement to the Purchasers’ reasonable satisfaction, extent required to be performed or satisfied on or prior to the Closing Date, ;
(b) the delivery to the Purchaser by counsel to the Company of a legal opinion substantially similar in substance to the form of opinion attached as Annex E hereto;
(c) receipt by the Purchaser of a certificate executed by the chief executive officer and the chief financial officer of the following conditions, any of which may be waived in writing by the Purchasers:
(i) The representations and warranties made by the Company in Section 3.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) The Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer or its Chief Financial OfficerCompany, dated as of the Closing Date, certifying to the fulfillment of effect that the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf representations and warranties of the Company by set forth herein are true and correct in all material respects as of the date of this Agreement and as of such Closing Date and that the Company has complied in all material respects with all the agreements and satisfied all the conditions herein on its Secretary, dated part to be performed or satisfied on or prior to such Closing Date;
(d) the Common Stock shall continue to be listed on the NASDAQ Stock Market as of the Closing Date; there shall have been no suspensions in the trading of the Common Stock as of the Closing Date; and the Conversion Shares shall be approved for listing on the NASDAQ Stock Market as of the Closing Date, certifying the resolutions subject to official notice of issuance; and
(e) no injunction, restraining order, action or order of any nature by a governmental or regulatory authority shall have been issued, taken or made or no action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by the Board any federal, state or foreign governmental or regulatory authority of Directors competent jurisdiction that would, prior to or as of the Company approving Closing Date, prevent or materially interfere with the consummation of the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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 CompanyAgreement.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase consummate the Shares and Warrants transactions contemplated by this Agreement shall be subject to the delivery of the fulfillment prior to or at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by of the Company contained in Section 3.1 hereof 3 shall be true on and correct except where as of the failure to be so true Closing in all material respects with the same effect as though such representations and correct does not have a Material Adverse Effect. warranties had been made on and as of the date of such Closing.
(b) The Company shall have performed and complied in all material respects with all agreements, obligations and conditions herein contained in this Agreement that are required to be performed or observed complied with by it on or prior before the Closing.
(c) All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state or of any securities exchange or trading market on which the Common Stock is listed that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall have been duly obtained and effective as of the Closing and all filings with such authorities or regulatory bodies shall have been made and accepted, to the extent so required to have been made and accepted as of the Closing Date.
(iid) The Subject to Section 2(c), the Company shall have obtained in delivered a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of stock certificate to the purchase and sale of Purchaser representing the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effectbeing purchased by the Purchaser under this Agreement.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(ive) The Company shall have delivered or made available to the Purchaser, all in form and substance reasonably acceptable to the Purchaser's counsel, the following:
(i) a Certificate, executed on behalf certificate of the Company by its Chief Executive Officer or its Chief Financial OfficerSecretary of the Company, dated as of the Closing Date, certifying as to the fulfillment incumbency of each officer executing this Agreement and the Registration Rights Agreement or any document related thereto; and
(ii) a certified copy of the conditions specified in subsections (i)resolutions of the Company's board of directors authorizing the execution, (ii), (iii) and(vii) delivery and consummation of this Section 2.2(a)Agreement and the Registration Rights Agreement and the transactions contemplated hereby and thereby.
(vf) The Company shall have delivered a Certificateto the Purchaser an opinion of counsel substantially in the form attached hereto as Exhibit B, executed on behalf of which may be the Company by its SecretaryCompany's vice president and general counsel, dated as of to the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws existence of the Company and certifying as its authority to consummate the transactions contemplated hereby in form and substance reasonably satisfactory to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the CompanyPurchaser.
(vig) The Prospectus Company shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of executed and delivered the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading Rights Agreement, substantially in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.form attached hereto as Exhibit A.
Appears in 1 contract
Samples: Securities Purchase Agreement (Dov Pharmaceutical Inc)
Conditions to the Purchaser’s Obligations. The obligation obligations ----------------------------------------- of the Purchaser hereunder required to be performed at each Purchaser to purchase the Shares and Warrants Closing shall be subject, at the Closing is subject its election, to the fulfillment to satisfaction or waiver (which waiver, if so requested by the Purchasers’ reasonable satisfactionCompany, on shall be made in writing), at or prior to the Closing DateClosing, or in the case of the conditions specified in Section 7.2(o) below, prior to the Second Closing, of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by of the Company in Section 3.1 hereof made herein shall be true and correct in all material respects (disregarding, for purposes of such determination of materiality, all qualifications in such representations and warranties regarding "material") as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except where that representations and warranties made herein that by their terms speak as of the failure to date of this Agreement or some other date shall be so true and correct does not have a Material Adverse Effect. only as of such date).
(b) The Company shall have performed in all material respects all obligations and conditions herein required agreements, and complied in all material respects with all covenants, contained in this Agreement, to be performed or observed and complied with by it at or prior to such Closing Date.
(c) Effective immediately prior to the First Closing, Xxxxxx Xxxxxxx and Xxxxx Xxxxx will resign as Co-Chairmen of the Company and Xxxxxx Xxxxxxx shall resign as a director of the Company. Effective immediately after the First Closing, the Company's Board of Directors shall consist of not more than seven (7) directors, who shall be Xxxxxxxx X. Xxxxxxx, Xx., Xxxxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxx Xxxxx, Xxxxx X. Xxxxx and Xxxxxxxx Xxxxxxxxxxx.
(d) All documents, instruments, agreements and arrangements relating to the transactions contemplated by the Documents shall be satisfactory to the Purchaser, shall have been executed and delivered by the parties thereto and no party to any of the foregoing (other than the Purchaser) shall have breached any of its material obligations thereunder.
(e) (i) Since December 31, 1999, no change, occurrence or development shall have occurred, been threatened or become known to the Purchaser that could reasonably be expected to have a Material Adverse Effect on the business, operations, prospects, properties or condition (financial or other) of the Company and its Subsidiary, taken as a whole, which, in the reasonable judgment of the Purchaser, is or may be materially adverse to the Company and its Subsidiary, taken as a whole, and (ii) the Purchaser shall not have become aware of any information or other matter relating to the Company (x) of which the Company (but not the Purchaser) had knowledge on or prior to the date of this Agreement, (y) that, in the Purchaser's reasonable judgement, is inconsistent with any information or other matter relating to the Company disclosed to the Purchaser by the Company or any of its representatives prior to the date of this Agreement, and (z) would have been viewed by the Purchaser, in its reasonable judgment, as having materially and adversely altered the total mix of information made available to the Purchaser prior to the date of this Agreement. For purposes of this Section 7.2(e), the Company shall be deemed to have "knowledge" of a particular fact or other matter if (I) any individual who is serving, or who has at any time served, as a director, officer or management- level employee of the Company is actually aware of such fact or other matter; or (II) a prudent individual serving as a director, officer or management-level employee of the Company could be expected to discover or otherwise become aware of such fact or other matter in the diligent exercise of his or her duties in such capacity.
(f) Since December 31, 1999, the business of the Company shall have been operated in compliance with all Applicable Laws, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole.
(g) There shall be no litigation, proceeding or other action seeking an injunction or other restraining order, damages or other relief from a Governmental Authority or other Person pending or threatened which, in the reasonable judgment of such Purchaser, would materially adversely affect the consummation of the transactions contemplated by the Documents on the terms contemplated hereby and thereby and there shall be no litigation, proceeding or other action (including, without limitation, relating to environmental matters or the Benefit Plans) pending or threatened against the Company or its Subsidiary which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(h) The procurement and maintenance of "key man" life insurance on the life of Xxxxx Xxxxx in the amount of Five Million Dollars ($5,000,000).
(i) All governmental and regulatory approvals and clearances and all third-party consents necessary for the consummation of all of the transactions contemplated at such Closing shall have been obtained and shall be in full force and effect, excluding, in the case of the First Closing only, expiration of the applicable waiting period under the HSR Act with respect to Shares to be purchased at the Second Closing, and the Purchaser shall be reasonably satisfied that the consummation of such transactions does not and will not contravene any Applicable Law, except to the extent any contravention or contraventions, individually or in the aggregate, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(j) The Company shall have delivered to the Purchaser a certificate, executed by it or on its behalf by a duly authorized representative, dated as of such Closing Date, certifying that each of the conditions (other than any condition the fulfillment of which is subject to the reasonable satisfaction of such Purchaser) specified in this Section 7.2 has been satisfied.
(k) Xxxxxx & Xxxxxxx, counsel to the Company, and Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to the Company, each shall have delivered to the Purchaser an opinion, dated as of such applicable Closing Date, addressed to the Purchaser, substantially in the form attached hereto as Exhibit ------- D-1 and Exhibit D-2, respectively. --- -----------
(l) Each of the Company, the Purchaser and KL shall have executed and delivered each of the Documents, as applicable.
(m) The Company shall have filed the Certificate of Designations in compliance with Section 2.1(a).
(n) The Board of Directors shall have approved, subject to stockholder approval at the next annual meeting, the amendments to the 1998 Plan and the 2000 Plan described in Section 5.10 hereof.
(o) The Company shall have amended its bylaws to conform with the Certificate of Designations.
(p) In addition, in the case of the Second Closing only,
(i) The Purchaser shall have purchased the 3,500,000 shares of Common Stock pursuant to the KL Purchase Agreement.
(ii) The Company Consumer Business shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effectachieved Consumer Profitability.
(iii) 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, The First Closing shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documentsoccurred.
(iv) The Company Since the First Closing, no events described in Sections 7.2(e), 7.2(f) and 7.2(g) above 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 (i), (ii), (iii) and(vii) of this Section 2.2(a)occurred.
(v) The Company New Option Plan shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as been approved pursuant to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the CompanySection 5.10.
(vi) The Prospectus proposed Recapitalization shall have been filed with approved by the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness stockholders of the Registration Statement or any part thereof Company and the Certificate of Incorporation of the Company shall have been issued and no proceeding for that purpose shall have been initiated or threatened by amended to give effect to the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities lawsRecapitalization.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase the Shares and Warrants at the Closing is Tract B-2 and to consummate the transactions contemplated in this Agreement shall be expressly subject to the fulfillment satisfaction and fulfillment, at or before the Closing, of each of the following conditions precedent and any other conditions stated elsewhere in this Agreement.
(a) There shall be no cause of action, order or preliminary or permanent injunction entered, pending or threatened in any action or proceeding before any United States federal or state court or agency, or any foreign court, of competent jurisdiction or governmental authority (which has jurisdiction over the enforcement of any applicable laws) enjoining or threatening, in whole or in part, the Company’s current operations, making illegal or prohibiting the consummation of the transactions hereunder, including the transfer of the Shares or the Acquired Assets and/or the operation of Devices at the Truck Stop.
(b) The representations and warranties of each Seller set forth in this Agreement and the Exhibits, Schedules, attachments, documents, certificates, Financial Statements or other items prepared or supplied to the Purchasers’ reasonable satisfactionPurchaser by or on behalf of any Seller or the Company shall be true and correct in all respects on the Closing Date with the same effect as though all such items had been made on and as of such date, and each Seller shall deliver, as a part of the Closing hereunder, to the Purchaser a certificate certifying such or identifying any changes as of the Closing Date.
(c) The Purchaser shall have received a good standing certificate for the Company dated within fifteen (15) days prior to the Closing Date.
(d) The Acquired Assets shall be in good physical and operating condition, excepting normal wear and tear only, as existed on the Agreement Date. No damage or casualty shall have occurred to the Acquired Assets, Devices or operations of the Company prior to the Closing Date.
(e) Purchaser shall have received a legal opinion, in the form of Exhibit D attached hereto, from legal counsel for the Sellers.
(f) As of the Closing Date, there shall be no adverse change in the operating results, operations, condition (financial or otherwise), prospects, employee relations or customer or supplier relations of the Company or the Acquired Assets, as applicable.
(g) The Purchaser shall have received from each Seller as appropriate each of the instruments and other documents referred to elsewhere in this Agreement.
(h) All Managers, Directors and Officers of the Company shall have resigned effective as of midnight on the Closing Date and the Purchaser shall have received from each Manager, Director and Officer the written resignation described above.
(i) Each Seller agrees that on or prior to the Closing Date, they shall, as applicable, have executed a purchase agreement between the Company and Southern Trading Corporation, or any other designee of the following conditionsPurchaser, any of which may be waived in writing by the Purchasers:
(i) The representations and warranties made by the Company in Section 3.1 hereof shall be true and correct except where the failure transferring to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed Southern Trading Corporation, or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrantssuch other designee, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) The Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer or its Chief Financial Officer, dated Listed Devices as of the Closing Date, certifying to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Stock Purchase Agreement (Jacobs Entertainment Inc)
Conditions to the Purchaser’s Obligations. The obligation obligations of each Purchaser of the Purchasers hereunder required to purchase the Shares and Warrants be performed at the Closing is subject shall be subject, at its election, to the fulfillment to satisfaction or waiver (which waiver, if so requested by the Purchasers’ reasonable satisfactionCompany, on shall be made in writing), at or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by of the Company in Section 3.1 hereof made herein shall be true and correct in all material respects (disregarding, for purposes of such determination of materiality, all qualifications in such representations and warranties regarding "material") as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except where that representations and warranties made herein that by their terms speak as of the failure to date of this Agreement or some other date shall be so true and correct does not have a Material Adverse Effect. only as of such date).
(b) The Company shall have performed in all material respects all obligations and conditions herein required agreements, and complied in all material respects with all covenants, contained in this Agreement, to be performed or observed and complied with by it on at or prior to the Closing Date.
(iic) The Company shall have obtained in a timely fashion any All documents, instruments, agreements and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of arrangements relating to the purchase and sale of transactions contemplated by the Shares and Warrants, all of which Documents shall be and remain so long as necessary in full force and effect.
(iii) 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 authoritysatisfactory to such Purchaser, shall have been issuedexecuted and delivered by the parties thereto and no party to any of the foregoing (other than the Purchasers) shall have breached any of its material obligations thereunder.
(d) (i) Since September 30, 2001, no change, occurrence or development shall have occurred, been threatened or become known to such Purchaser that could reasonably be expected to have a Material Adverse Effect on the business, operations, prospects, properties or condition (financial or other) of the Company and PRSI, taken as a whole, which, in the reasonable judgment of such Purchaser, is or may be materially adverse to the Company and PRSI, taken as a whole, and no action (ii) none of the Purchasers shall have become aware of any information or proceeding other matter relating to the Company (x) of which the Company (but not the Purchasers) had knowledge on or prior to the date of this Agreement, (y) that, in such Purchaser's reasonable judgment, is inconsistent with any information or other matter relating to the Company disclosed to such Purchaser by the Company or any of its representatives prior to the date of this Agreement, and (z) would have been viewed by such Purchaser, in its reasonable judgment, as having materially and adversely altered the total mix of information made available to such Purchaser prior to the date of this Agreement. For purposes of this Section 7.2(d), the Company shall be deemed to have "knowledge" of a particular fact or other matter if (I) any individual who is serving, or who has at any time served, as a director, officer or management-level employee of the Company is actually aware of such fact or other matter; or (II) a prudent individual serving as a director, officer or management-level employee of the Company could be expected to discover or otherwise become aware of such fact or other matter in the diligent exercise of his or her duties in such capacity.
(e) Since September 30, 2001, the business of the Company shall have been instituted by any governmental authorityoperated in compliance with all Applicable Laws, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect on the Company and PRSI, taken as a whole.
(f) There shall be no litigation, proceeding or self-regulatory organization enjoining other action seeking an injunction or preventing other restraining order, damages or other relief from a Governmental Authority or other Person pending or threatened which, in the reasonable judgment of such Purchaser, would materially adversely affect the consummation of the transactions contemplated by the Documents on the terms contemplated hereby and thereby and there shall be no litigation, proceeding or other action (including, without limitation, relating to environmental matters or the Benefit Plans) pending or threatened against the Company or PRSI which could, individually or in the other Transaction Documentsaggregate, reasonably be expected to have a Material Adverse Effect.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser the Purchasers to purchase consummate the Shares and Warrants transactions contemplated by this Agreement shall be subject to the delivery of the fulfillment prior to or at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by of the Company contained in Section 3.1 hereof 3 shall be true on and correct except where as of the failure to be so true Closing in all material respects with the same effect as though such representations and correct does not have a Material Adverse Effect. warranties had been made on and as of the date of such Closing.
(b) The Company shall have performed and complied in all material respects with all agreements, obligations and conditions herein contained in this Agreement that are required to be performed or observed complied with by it on or prior before the Closing.
(c) All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state or of any securities exchange or trading market on which the Common Stock is listed that are required in connection with the lawful issuance and sale of the Securities pursuant to this Agreement shall have been duly obtained and effective as of the Closing and all filings with such authorities or regulatory bodies shall have been made and accepted, to the extent so required to have been made and accepted as of the Closing Date.
(iid) The Subject to Section 2(c), the Company shall have obtained in delivered a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation stock certificate to each of the purchase and sale of Purchasers representing the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effectbeing purchased by such Purchaser under this Agreement.
(iiie) No judgmentSubject to Section 2(c), 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, the Company shall have been issuedexecuted and delivered the Warrants, and no action or proceeding shall have been instituted by any governmental authorityin the form attached hereto as EXHIBIT A, or self-regulatory organization enjoining or preventing the consummation to each of the transactions contemplated hereby or in Purchasers representing the other Transaction DocumentsWarrants being purchased by such Purchaser under this Agreement.
(ivf) The Company shall have delivered or made available to the Purchasers, all in form and substance reasonably acceptable to the Purchasers' counsel, the following:
(i) a Certificate, executed on behalf certificate of the Company by its Chief Executive Officer or its Chief Financial OfficerSecretary of the Company, dated as of the Closing Date, certifying as to the fulfillment incumbency of any officer executing this Agreement or any document related thereto; and
(ii) a certified copy of the conditions specified in subsections resolutions of the Company's board of directors authorizing (i)A) the execution, delivery and consummation of the Transaction Documents and (ii), (iiiB) and(vii) of this Section 2.2(a)transactions contemplated thereby.
(vg) The Company shall have delivered a Certificate, executed on behalf to the Purchasers an opinion of counsel as to the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws existence of the Company and certifying as its authority to consummate the transactions contemplated hereby in form and substance reasonably satisfactory to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the CompanyPurchasers.
(vih) The Prospectus Company shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of executed and delivered the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading Rights Agreement, substantially in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.form attached hereto as EXHIBIT B.
Appears in 1 contract
Samples: Securities Purchase Agreement (Dov Pharmaceutical Inc)
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase and pay for the Shares and Warrants at the Closing Company Stock is subject to the fulfillment satisfaction of the following conditions as of the Closing Date:
(a) the representations and warranties set forth in Article V and Article VI hereof shall be true and correct in all material respects at and as of the date of this Agreement (without (i) regard to any references to "material" or "Material Adverse Effect" in such representations and warranties and (ii) taking into account any disclosures made by the Company or the Stockholder to the Purchasers’ reasonable satisfactionPurchaser pursuant to Sections 3.1(g) or 5.26 hereof or any updates to the Disclosure Schedules delivered pursuant to Section 5.26), except to the extent such representations and warranties relate to an earlier date (in which case such representations and warranties shall be true and correct on and as of such earlier date);
(b) the Company and the Stockholder shall have performed and complied with in all material respects all of the material covenants and agreements required to be performed by each of them under this Agreement on or prior to the Closing;
(c) all consents by third parties that are required for the consummation of the transactions contemplated hereby or that are required in order to prevent a breach of, a material default under, a termination or modification of, or any acceleration of, any obligations under any contract to which the Company or any of its Subsidiaries is a party and which is identified with an asterisk (*) on the Contracts Schedule, the Conflicts Schedule or the Stockholder Conflicts Schedule shall have been obtained, all on terms reasonably satisfactory to the Purchaser;
(d) all governmental filings, authorizations and approvals that are required for the consummation of the transactions contemplated hereby shall have been duly made and obtained on terms reasonably satisfactory to the Purchaser;
(e) the purchase by the Purchaser of the Company Stock hereunder shall not be prohibited by any applicable law or governmental regulation, shall not subject the Purchaser to any penalty, liability or other onerous condition under or pursuant to any applicable law or governmental regulation, and shall be permitted by laws and regulations of the jurisdictions to which the Purchaser is subject;
(f) the Stockholder shall have simultaneously delivered to the Purchaser the Company Stock and shall have received the Cash Price in exchange therefor in full;
(g) the applicable waiting periods, if any, under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvement Act of 1976, as amended (the "HSR Act") shall have expired or been terminated;
(h) except as otherwise specified by the Purchaser, all of the Company's and each of its Subsidiaries' directors and officers shall have resigned and such resignations shall be effective as of the Closing Date;
(i) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable judgment, decree, injunction, order or ruling would prevent the performance of this Agreement or any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement or cause such transactions to be rescinded, and no judgment, decree, injunction, order or ruling shall have been entered which has any of the foregoing effects;
(j) payoff letters as requested by the Purchaser with respect to certain of the Company's and its Subsidiaries' Indebtedness outstanding as of the Closing and releases of any and all Liens (other than Permitted Encumbrances) related to such specified payoff letters, including
(k) the Purchaser shall have received an opinion, dated the Closing Date, of Vinsxx & Xlkixx X.X.P., counsel to the Company and the Stockholder, in form and substance satisfactory to the Purchaser;
(l) on or prior to the Closing Date, the Company and the Stockholder shall have delivered to the Purchaser all of the following conditions, any of which may be waived in writing by the Purchasersfollowing:
(i) The representations and warranties made by a certificate from an officer of the Company and the Stockholder in Section 3.1 hereof shall be true and correct except where a form reasonably satisfactory to the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to Purchaser, dated the Closing Date., stating that the preconditions specified in Sections 2.1(a)-(d), (g) and (h) have been satisfied;
(ii) The Company shall have obtained in a timely fashion any copies of all necessary material third party and all material governmental consents, permits, approvals, registrations filings, releases and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary terminations required in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing connection with the consummation of the transactions contemplated hereby or herein;
(iii) copies of the resignations described in the other Transaction Documents.Section 2.1(h);
(iv) The Company shall have delivered a Certificate, executed on behalf certified copies of the Company resolutions duly adopted by its Chief Executive Officer or its Chief Financial Officerthe Company's board of directors and Stockholder authorizing the execution, dated as delivery and performance of this Agreement and each of the Closing Date, certifying to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).transactions contemplated hereby; and
(v) The Company shall have delivered a Certificate, executed on behalf certificates of the Company by its Secretary, dated as Secretary of the Closing Date, certifying the resolutions adopted by the Board State of Directors of any state where the Company approving or any of its Subsidiaries is qualified to do business providing that the Company or such Subsidiary is in good standing in such state;
(m) all debt financing necessary to consummate the transactions contemplated by this Agreement herein and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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 satisfy the Company.
(vi) The Prospectus 's ongoing working capital requirements shall have been filed with obtained in amounts and on terms no less favorable to the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading Company than those set forth in the Common Stockterm sheet attached to the Commitment Letters attached hereto as Exhibit A; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.and
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each Additional Purchaser to purchase the Shares and Warrants Additional Notes at the each Additional Notes Closing is subject to the fulfillment to the Purchasers’ reasonable such Additional Purchaser’s satisfaction, on or prior to the applicable Additional Notes Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:such Additional Purchaser (as to itself only):
(ia) The representations and warranties made by the Company in Section 3.1 hereof 4 qualified as to materiality shall be true and correct as of the date of this Agreement and as of the applicable Additional Notes Closing Date as so qualified, except where to the failure to extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be so true and correct does as of such earlier date as so qualified, and, the representations and warranties made by the Company in Section 4 not have a Material Adverse Effectqualified as to materiality shall be true and correct in all material respects at all times as of the date of this Agreement and as of the applicable Additional Notes 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 in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and conditions covenants herein required to be performed or observed by it on or prior to the applicable Additional Notes Closing Date.
(iib) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares Securities and Warrantsthe consummation of the other transactions contemplated by the Transaction Documents, all of which shall be and remain so long as necessary in full force and effect.
(iiic) The Company shall have executed and delivered the Registration Rights Agreement.
(d) The Company shall have filed with Nasdaq a Notification Form: Listing of Additional Shares for the listing of the Conversion Shares on Nasdaq, a copy of which shall have been provided to the Additional Purchasers.
(e) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(ivf) 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 applicable Additional Notes Closing Date, certifying to the fulfillment of the conditions specified in subsections (ia), (iib), (iiie) and(viiand (j) of this Section 2.2(a)6.1.
(vg) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the applicable Additional Notes Closing Date, certifying the resolutions adopted by the Board of Directors of the Company or any duly authorized committee thereof approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and WarrantsAdditional Notes, certifying the current versions of the Certificate Articles of Incorporation 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.
(vih) The Prospectus Additional Purchasers shall have been filed with received an opinion from O’Melveny & Xxxxx LLP, special counsel to the Commission pursuant to Rule 424(b) under the Securities Act within Company, dated as of the applicable time period prescribed for Additional Notes Closing Date, in form and substance reasonably acceptable to the Additional Purchasers and addressing such filing; no legal matters as the Additional Purchasers may reasonably request.
(i) No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or order, suspension of trading or delisting shall have been imposed by Nasdaq, the SEC or any Person other governmental or regulatory body with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(viij) The Company’s Common Stock (Company shall have delivered the written consent of Silicon Valley Bank to all of the transactions contemplated hereby, including without limitation the Shares incurrence of Indebtedness hereunder, the issuance of the Additional Notes to the Additional Purchasers, and the Warrant Shares) Stock Pledges, and shall be eligible for inclusion on have delivered such other documents, agreements and instruments relating thereto as are reasonably required by the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital MarketAdditional Purchasers.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser Purchaser's obligations to purchase the Purchased Shares and Warrants to take the other actions required to be taken by it at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on at or prior to the Closing DateClosing, of each of the following conditions, conditions (any of which may be waived in writing by the Purchasers:Purchaser, in whole or in part):
(ia) The representations and warranties made by of the Company contained in Section 3.1 hereof this Agreement shall be true on and correct as of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing Date, except where to the failure extent any such representations and warranties are stated to be so made as of a specific date, in which case they shall be true as of such date, except in each case for any inaccuracies in such representations and correct does warranties as would not have a Material Adverse Effectmaterial adverse effect on the Company. The In addition, the Company shall have performed in all material respects all obligations and conditions herein required pursuant to the terms of this Agreement to be performed or observed by it on or prior to the Closing DateClosing.
(iib) The Company shall have delivered to the Purchaser a certificate, executed by an executive officer of the Company, dated the date of the Closing, setting forth the Company's representation that the conditions set forth in Section 4.1(a) above shall have been satisfied.
(c) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations waivers and waivers approvals necessary or appropriate for consummation of the purchase and sale of Transactions (except for such as may be properly obtained subsequent to the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effectClosing).
(iiid) No judgmentThere shall be no injunction, writ, order, injunction, award preliminary restraining order or decree other order in effect of or any nature issued by any court, or judge, justice or magistrate, including any bankruptcy a court or judge, or any order governmental agency of or by any governmental authority, shall have been issued, and no competent jurisdiction directing that the Transactions not be consummated in the manner provided for in this Agreement. No action or proceeding shall have been instituted by and remain pending before a court or other governmental body of competent jurisdiction to restrain, prohibit or otherwise challenge any governmental authority, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby Transactions (or in seeking material damages from the Purchaser or the Company as a result thereof), other Transaction Documentsthan any such action or proceeding which would not have a material adverse effect on the Company or prevent the Company or the Purchaser from performing their respective obligations hereunder.
(ive) The Company shall have delivered to the Purchaser a Certificatelegal opinion from counsel to the Company, executed on behalf in form and substance reasonably satisfactory to the Purchaser and its counsel and addressing the matters listed in EXHIBIT C hereto.
(f) On or prior to the Closing Date, the Purchaser shall have received a certificate of the Company by its Chief Executive Officer or its Chief Financial OfficerSecretary of State of the State of Delaware, dated as of the Closing Datea recent date, certifying to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf good standing of the Company.
(vig) The Prospectus IPO shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities lawsclosed.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. (a) The obligation of each the Class A Purchaser to consummate its purchase the Shares and Warrants of Class A Purchased Units at the Closing is shall be subject to the fulfillment satisfaction on or prior to the Purchasers’ reasonable satisfactionClosing Date of each of the following conditions (any or all of which may be waived by the Class A Purchaser in writing, in whole or in part, to the extent permitted by applicable Law):
(i) there shall not have occurred a Material Adverse Effect; and
(ii) each Class B Purchaser shall have satisfied, on or prior to the Closing Date, the conditions set forth in Section 2.05 with respect to such Class B Purchaser (any or all of which conditions may be waived by the Class A Purchaser in writing, in whole or in part, to the extent permitted by applicable Law), and each Class B Purchaser shall have delivered, or caused to be delivered, to the Company such Class B Purchaser’s closing deliveries described in Section 2.07(b).
(b) The obligation of each Class B Purchaser to consummate its purchase of Class B Purchased Units in the Class B Units Sale at the Closing shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions, conditions (any or all of which may be waived by such Class B Purchaser with respect to itself in writing writing, in whole or in part, to the extent permitted by the Purchasers:applicable Law):
(i) The the representations and warranties made by of the Company Company, NEP and the Class A Purchaser contained in Section 3.1 hereof this Agreement shall be true and correct except where the failure to in all material respects (other than those representations and warranties contained in Section 3.01, Section 3.02, Section 3.03, Section 3.04, Section 3.05, Section 3.11, Section 3.13, or Section 3.14 or other representations and warranties that are qualified by materiality or Material Adverse Effect, which, in each case, shall be so true and correct does not have in all respects) when made and as of the Closing Date (except that representations and warranties made as of a Material Adverse Effect. The specific date shall be required to be true and correct as of such date only);
(ii) the Company shall have performed and complied in all material respects with all obligations of the covenants and conditions herein agreements contained in this Agreement that are required to be performed or observed complied with by it on or prior to the Closing Date.;
(iiiii) The NEP shall have performed and complied in all material respects with all of the covenants and agreements contained in this Agreement that are required to be performed or complied with by it on or prior to the Closing Date;
(iv) the NYSE shall have authorized, upon official notice of issuance, the listing of the Conversion Units to be issued upon conversion of the Issued NEP Non-Voting Units into Conversion Units;
(v) no notice of delisting from NYSE shall have been received by NEP with respect to the NEP Common Units;
(vi) the Debt Financing shall have been funded on the terms and conditions set forth in the Credit Agreement, after giving effect to any “flex” rights in the Credit Agreement or any related agreement, or upon terms and conditions that are not materially less favorable, in the aggregate, to the Class B Purchaser;
(vii) the Margin Loan Credit Agreement shall be in full force and effect;
(viii) there shall not have occurred a Material Adverse Effect;
(ix) the Company shall have obtained delivered, or caused to be delivered, to the Purchaser the Company’s closing deliveries described in a timely fashion any and all material consentsSection 2.07(a);
(x) NEP shall have delivered, permitsor caused to be delivered, approvalsto the Purchaser the closing deliveries of NEP described in Section 2.07(c);
(xi) the Class A Purchaser shall have delivered, registrations and waivers necessary or appropriate for consummation of caused to be delivered, to the purchase and sale of Company the Shares and Warrants, all of which Class A Purchaser’s closing deliveries described in Section 2.07(b);
(xii) the Issuer Agreement shall be in full force and remain so long as necessary effect;
(xiii) the Assignment of Asset Purchase Agreement shall be in full force and effect; and
(xiv) the Build Out Agreement shall be in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (NextEra Energy Partners, LP)
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser to purchase the Shares and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:such Purchaser (as to itself only):
(ia) The representations and warranties made by the Company in Section 3.1 4 hereof shall be true and correct in all material respects (except where the failure to for those representations and warranties that are qualified by materiality or Material Adverse Change, which shall be so true and correct does not have a in all respects) as of the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse EffectChange, which shall be true and correct in all respects) as of such earlier date. The Company shall have performed in all material respects all obligations and conditions covenants herein required to be performed or observed by it on or prior to the Closing Date.
(iib) The Company shall have obtained performed, satisfied and complied in a timely fashion any and all material consentsrespects with all covenants, permitsagreements and conditions required by the Transaction Documents to be performed, approvals, registrations and waivers necessary satisfied or appropriate for consummation of complied with by it at or prior to the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effectClosing Date.
(c) a Certificate of the Secretary of the Company, dated as of the Closing Date, shall be delivered (i) certifying the resolutions adopted by the Board of Directors of the Company and any duly authorized committee thereof relating to the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares, (ii) certifying the current versions of the certificate of incorporation, as amended, and bylaws of the Company and (iii) certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company, in form and substance reasonably acceptable to the Purchasers (the “Secretary’s Certificate”);
(d) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, in each case having authority over the Company or its subsidiaries, or any order of or by any applicable governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.. 0000-0000-0000\10
(ive) 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 (ia) and (b), (ii), (iii) and(vii) of this Section 2.2(a)6.1.
(vf) The Purchasers shall have received an opinion of (i) Company Counsel dated as of the Closing Date and (ii) Company Intellectual Property Counsel, each in a form and substance reasonably acceptable to the Purchasers.
(g) The Company shall have executed and delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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 Companyto each Purchaser.
(vih) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no No stop order or suspension of trading shall have been imposed or threatened in writing by the Trading Market, FINRA, the SEC or any Person other governmental or regulatory body with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase the Shares and Warrants at from the Closing Issuer is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The each of the representations and warranties made by of the Company in Section 3.1 hereof Issuer contained herein shall be true and correct except where on and as of the failure to be so true and correct does not have a Material Adverse Effect. The Company Closing Date;
(b) the Issuer shall have performed in and complied with all material respects all obligations covenants and conditions herein agreements required by this Agreement to be performed or observed complied with by it the Issuer on or prior to the Closing Date., and the Issuer shall not be in default under or in violation of any provisions of the Charter;
(iic) The Company the Purchaser shall have received a certificate dated the Closing Date signed by an executive officer of the Issuer to the effect set forth in subsections (a), (b), and (d) of this Section 6.01;
(d) the Issuer and the Purchaser shall have obtained in a timely fashion any all Governmental Authorizations and all other material consents, waivers or permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.hereby;
(ive) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance Purchaser's acquisition of the Shares and Warrantsas provided herein shall not be prohibited by any applicable Law or any contract, certifying agreement, document or other instrument by which the current versions Purchaser is bound;
(f) there shall not have occurred any Material Adverse Change;
(g) the closing of the Certificate of Incorporation and Bylaws of Initial Public Offering substantially concurrently with the Company and certifying as Closing;
(h) the amendment to the signatures and authority of persons signing Shareholders Agreement, substantially in the Transaction Documents and related documents on behalf of the Company.
(vi) The Prospectus form attached hereto as Exhibit A, shall have been filed with executed and delivered by each of the Commission pursuant to Rule 424(bparties thereto; and
(i) the consent under the Securities Act within Securityholders Agreement, substantially in the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof form attached hereto as Exhibit B, shall have been issued executed and no proceeding for that purpose shall have been initiated or threatened delivered by each of the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities lawsparties thereto.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser Purchaser's obligations to purchase the Purchased Shares and Warrants to take the other actions required to be taken by it at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on at or prior to the Closing DateClosing, of each of the following conditions, conditions (any of which may be waived in writing by the Purchasers:Purchaser, in whole or in part):
(ia) The representations and warranties made by of the Company contained in Section 3.1 hereof this Agreement shall be true on and correct as of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing Date, except where to the failure extent any such representations and warranties are stated to be so made as of a specific date, in which case they shall be true as of such date, except in each case for any inaccuracies in such representations and correct does warranties as would not have a Material Adverse Effectmaterial adverse effect on the Company. The In addition, the Company shall have performed in all material respects all obligations and conditions herein required pursuant to the terms of this Agreement or any of the other Transactional Agreements to be performed or observed by it on or prior to the Closing DateClosing.
(iib) The Company shall have delivered to the Purchaser a certificate, executed by an executive officer of the Company, dated the date of the Closing, setting forth the Company's representation that the conditions set forth in Section 4.1(a) above shall have been satisfied.
(c) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations waivers and waivers approvals necessary or appropriate for consummation of the purchase and sale of Transactions (except for such as may be properly obtained subsequent to the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effectClosing).
(iiid) No judgmentThere shall be no injunction, writ, order, injunction, award preliminary restraining order or decree other order in effect of or any nature issued by any court, or judge, justice or magistrate, including any bankruptcy a court or judge, or any order governmental agency of or by any governmental authority, shall have been issued, competent jurisdiction directing that the Transactions not be consummated in the manner provided for in this Agreement and no the other Transactional Agreements. No action or proceeding shall have been instituted by and remain pending before a court or other governmental body of competent jurisdiction to restrain, prohibit or otherwise challenge any governmental authority, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby Transactions (or in seeking material damages from the Purchaser or the Company as a result thereof), other Transaction Documentsthan any such action or proceeding which would not have a material adverse effect on the Company or prevent the Company or the Purchaser from performing their respective obligations hereunder.
(ive) The Company shall have delivered to the Purchaser a Certificatelegal opinion from counsel to the Company, executed on behalf in form and substance reasonably satisfactory to the Purchaser and its counsel and addressing the matters listed in EXHIBIT D hereto.
(f) On or prior to the Closing Date, the Purchaser shall have received a certificate of the Company by its Chief Executive Officer or its Chief Financial OfficerSecretary of State of the State of Delaware, dated as of the Closing Datea recent date, certifying as to the fulfillment good standing of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a)Company.
(vg) The Company shall have executed and delivered to the Purchaser the Amendment to the Fourth Amended and Restated Registration Rights Agreement.
(h) The Purchaser Board Designee shall have been appointed to a Certificate, executed term on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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 Companyprovided in Section 1.3.
(vii) The Prospectus IPO shall have been filed with the Commission pursuant to Rule 424(bclosed.
(j) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness The approval of the Registration Statement or any part thereof Japanese Ministry of Post and Telecommunications shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities lawsreceived.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Stock Purchase and Master Strategic Relationship Agreement (Commerce One Inc)
Conditions to the Purchaser’s Obligations. The obligation obligations of each Purchaser to purchase the Shares Property from Seller and Warrants at to consummate the Closing is transactions contemplated by this Agreement are subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to as of the Closing DateClosing, of each of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The All of the representations and warranties made by the Company of Seller set forth in Section 3.1 hereof this Agreement shall be true and correct except where as of the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed Closing in all material respects all obligations and conditions herein required to be performed except for changes expressly permitted or observed contemplated by it on or prior to the Closing Dateterms of this Agreement.
(b) Seller and the Guarantor shall have delivered, performed, observed and complied in all material respects with all of the items, instruments, documents, covenants, agreements and conditions required by this Agreement to be delivered, performed, observed and complied with by Seller and the Guarantor prior to, or as of, the Closing.
(c) Neither Seller nor Guarantor shall be in receivership or dissolution proceedings or have made any assignment for the benefit of creditors, or admitted in writing its inability to pay its debts as they mature, or have been adjudicated as bankrupt, or have filed a petition in voluntary bankruptcy, a petition or answer seeking reorganization or an arrangement with creditors under the federal bankruptcy law or any other similar law or statute of the United States or any state and no such petition shall have been filed against it; and neither Seller nor Guarantor shall be in default with respect to any Indebtedness in the outstanding amount of (i) in the case of Seller, at least $50,000, and (ii) The Company in the case of Guarantor, at least $1,000,000.
(d) No material or substantial change shall have obtained occurred with respect to the condition, financial or otherwise, of the Property, Seller or Guarantor.
(e) Neither the Property nor any part thereof or interest therein shall have been taken by execution or other process of law in a timely fashion any action prior to Closing.
(f) Purchaser shall be reasonably satisfied with its inspection of the Property with respect to the physical condition thereof by agents or contractors selected by Purchaser.
(g) Purchaser shall have received, in form acceptable to Purchaser, evidence of compliance by the Property with all Permits required as of the Effective Date hereof and all material consents, permits, approvals, registrations and waivers such other Permits as may be necessary or appropriate for consummation the operation of the purchase Property for the current and sale of the Shares intended use and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving for the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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 CompanyLease.
(vih) The Prospectus All necessary approvals, consents and the like of third parties to the validity and effectiveness of the transactions contemplated hereby shall have been filed obtained.
(i) Purchaser shall be reasonably satisfied that the Property is sufficient and adequate for Seller to carry on the business now being conducted thereon and that the Property is in good condition and repair as reasonably required for the proper operation and use thereof in compliance with applicable Laws and the Commission requirements of applicable accreditation and licensing authorities.
(j) Purchaser shall be satisfied with all matters regarding title and survey pursuant to Rule 424(bArticle V hereof.
(k) under Purchaser shall have obtained an environmental site assessment report covering the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness Property in form and content acceptable to Purchaser.
(l) No portion of the Registration Statement or any part thereof Property shall have been issued and no destroyed by fire or casualty.
(m) No condemnation, eminent domain or similar proceeding for that purpose shall have been initiated commenced or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in any portion of the Common Stock; and the Property.
(n) Purchaser shall have received an appraisal satisfactory to Purchaser in all respects, including without limitation a fair market value substantially equivalent to the Prospectus in accordance with the federal securities lawsPurchase Price.
(viio) The Company’s Common Stock Seller shall have provided such representations, warranties and consents as may be reasonably required by the United States Securities and Exchange Commission (including but not limited to inclusion of financial statements, financial information and other required information concerning Seller or any affiliate of Seller in any United States Securities and Exchange Commission filings made by Purchaser or any affiliate of Purchaser).
(p) Capstone Capital of San Antonio, Ltd. shall have entered into an Agreement of Sale and Purchase with RHCI San Antonio, Inc., a Delaware corporation ("RHCI"), for the Shares purchase of property constituting Mission Vista Hospital in San Antonio, Texas, and the Warrant Shares) there shall be eligible for inclusion exist no event of default thereunder on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Marketpart of RHCI.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Ramsay Health Care Inc)
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser to purchase the Shares and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable such Purchaser’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:such Purchaser (as to itself only):
(i) The representations and warranties made by the Company in Section 3.1 hereof shall be true and correct at all times prior to and on the Closing Date, except where to the failure to extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be so true and correct does not have a Material Adverse Effectas of such earlier date. The Company shall have performed in all material respects all obligations and conditions covenants herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares Securities and Warrantsthe consummation of the other transactions contemplated by the Transaction Documents, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Securities Purchase Agreement (Hudson Holding Corp)
Conditions to the Purchaser’s Obligations. The obligation obligations of each the Purchaser to purchase consummate the Shares Closing Transactions and Warrants the other transactions contemplated to be consummated by such Party at the Closing is are subject to the fulfillment to the Purchasers’ reasonable satisfaction, on satisfaction (or waiver by Purchaser) at or prior to the Closing Date, (or at such other time prior thereto as may be expressly provided in this Agreement) of each of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by the Company of Seller set out in Section 3.1 hereof this Agreement shall be true and correct except where in all material respects, and no fact or circumstance that is not disclosed in this Agreement or any document or other writing delivered by Seller to Purchaser prior to the failure date of this Agreement shall have come to the attention of Purchaser that could reasonably be so true and correct does not expected to have a Material Adverse Effect. The Company Effect on Seller, Purchaser or Purchaser's right to own, use and exploit any of the Purchased Assets.
(b) Seller shall have performed complied in a timely manner and in all material respects all obligations with its covenants and conditions herein required to be performed or observed by it on or prior to the Closing Dateagreements set out in this Agreement.
(iic) The Company All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement to the contrary) to complete the transactions contemplated to occur at the Closing shall have obtained in a timely fashion been secured, including without limitation that this Agreement shall have been approved by the affirmative vote of the directors and shareholders of Seller, as may be required by applicable law or their applicable Governing Documents.
(d) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any and all material consents, permits, approvals, registrations and waivers necessary court of competent jurisdiction or appropriate for governmental authority that prohibits or restricts the consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effectPurchased Assets at the Closing or the related transactions.
(iiie) No judgmentThe Closing shall have occurred not later than April 6, writ1998, order, injunction, award unless such date is extended by the mutual written agreement of the parties hereto.
(f) All of the documents to be executed at 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, before the Closing shall have been issuedexecuted, and no action all of the actions described in Section 2.2 to occur at or proceeding before the Closing shall have been instituted by any governmental authority, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documentsoccurred.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Asset Purchase Agreement (North American Technologies Group Inc /Mi/)
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser to purchase the Shares and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable such Purchaser's satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:such Purchaser (as to itself only):
(i) The representations and warranties made by the Company in Section 3.1 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except where to the failure to extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be so true and correct does as of such earlier date, and, the representations and warranties made by the Company in Section 3 hereof not have a Material Adverse Effectqualified as to materiality shall be true and correct in all material respects 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 in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and conditions covenants herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares Securities and Warrantsthe consummation of the other transactions contemplated by the Transaction Documents, all of which shall be and remain so long as necessary in full force and effect.
(iii) The Company shall have executed and delivered the Registration Rights Agreement.
(iv) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(ivv) The Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer or its Chief Financial OfficerPresident, dated as of the Closing Date, certifying to the fulfillment of the conditions specified in subsections (i), (ii), (iiiiv) and(viiand (ix) of this Section 2.2(a2.3(a).
(vvi) The Company shall have delivered a Certificate, executed on behalf of the Company by its SecretaryGeneral Counsel, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and WarrantsSecurities, certifying the current versions of the Certificate of Incorporation 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.
(vivii) The Prospectus Company shall have been filed with executed and delivered the Commission pursuant to Rule 424(bRegistration Rights Agreement.
(viii) under The Purchasers shall have received an opinion from Haynes & Boone LLP, the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness Company's xxxxxel, xxxed as of the Registration Statement or any part thereof shall have been issued Closing Date, in form and no proceeding for that purpose shall have been initiated or threatened by substance reasonably acceptable to the Commission; no Purchasers and addressing such legal matters as the Purchasers may reasonably request.
(ix) No stop order or suspension of trading shall have been imposed by Nasdaq, the SEC or any Person other governmental or regulatory body with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Securities Purchase Agreement (Hudson Holding Corp)
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase the Shares and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(i) The representations and warranties made by the Company in Section 3.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving consummate the transactions contemplated by this Agreement and is subject to the other Transaction Documents and the issuance satisfaction of the Shares and Warrants, certifying the current versions following conditions as of the Certificate Closing Date or such other date as specifically provided below:
(a) the representations and warranties set forth in Article IV shall be true and correct in all material respects at and as of Incorporation the Closing Date as though then made and Bylaws as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties;
(b) the Company shall have performed and complied with all of the covenants and agreements required to be performed by it under this Agreement on or prior to the Closing;
(c) Xxxx Xxxxxxxx shall have entered into an Employment Agreement with the Purchaser;
(d) the Purchaser shall have completed its due diligence review of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf its Subsidiaries, including its review of the Company.’s and such other entities’ operations (including those located outside of the State of Wisconsin), environmental issues and status, intellectual property issues, legal issues, license and permitting issues; management, method of accounting, competitive position, customer and supplier relationships and all other relevant aspects of the Company and the Business, and the results of such review are satisfactory to the Purchaser; provided, however, that if Purchaser shall not have provided notice that it is not satisfied with its due diligence review on or before the date that is seven days from the date hereof, then this condition shall be deemed to be waived;
(vie) The Prospectus the Transactions shall not be prohibited by any applicable law or governmental regulation, shall not subject the Purchaser to any penalty, liability or other materially adverse condition under or pursuant to any applicable law or governmental regulation, and shall be permitted by laws and regulations of the jurisdictions to which the Purchaser are subject;
(f) the Company shall be in compliance with the requirements of all Permits (as defined in Section 4.10), the failure with which to comply would have a material adverse effect on the Company;
(g) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable judgment, decree, injunction, order or ruling would prevent the performance of this Agreement or any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement, cause such transactions to be rescinded or materially and adversely affect the right of the Purchaser to own the Purchased Assets, and no judgment, decree, injunction, order or ruling shall have been filed with entered which has any of the Commission pursuant to Rule 424(bforegoing effects;
(h) Bank One NA shall have provided a letter that the principal and interest outstanding under the Securities Act within Loan Agreement has been paid and shall have terminated its Liens in, and delivered to the applicable time period prescribed for such filing; no stop order suspending Company proper termination statements (Form UCC-3) necessary to terminate the effectiveness of any Financing Statements filed with respect to, the Registration Statement or any part thereof assets of the Company and its Subsidiaries, including but not limited to the Purchased Assets;
(i) US Bank National Association shall have provided a letter that the principal and interest outstanding under the Industrial Revenue Bond Obligations has been issued paid and no proceeding for that purpose shall have been initiated or threatened by terminated its Liens in, and delivered to the Commission; no stop order or suspension Company proper termination statements (Form UCC-3) necessary to terminate the effectiveness of trading any Financing Statements filed with respect to, the assets of the Company and its Subsidiaries, including but not limited to the Purchased Assets;
(j) the Company shall have been imposed by filed a name change with the Wisconsin Secretary of State changing the Company’s corporate name to a name that does not include the word “Xxxxxxx”;
(k) the Purchaser shall have received all material permits, licenses, registrations and other governmental approvals required for Purchaser’s operation of the Business and occupation of the Premises (including without limitation all permits, licenses, registrations and other governmental approvals required under Environmental Laws), provided, that the Purchaser has used commercially reasonable efforts to file applications to obtain or, to the extent any Person with respect of the Company’s material permits, licenses, registrations or other governmental authorizations are transferable to public trading the Purchaser and included in the Common StockPurchased Assets, to file requests to transfer, reissue or modify, any such permits, licenses, registrations and approvals;
(l) Title Insurer shall be irrevocably committed and unconditionally prepared to issue the Title Policies; and
(m) the Company shall have caused X. Xxxxxxx Building, Inc. to convey by quitclaim deed to the Company prior to the Closing all of its right, title and interest in, to and under any real property, if any, used in connection with the Business, free and clear of all liens and encumbrances created or permitted by X. Xxxxxxx Building, Inc. so that such real property shall constitute Purchased Assets; and
(n) the Company and the Purchaser shall have received agreed upon the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares Remediation Plan and the Warrant Shares) Assumed Remediation Obligation Reserve. Any condition specified in this Section 3.6 may be waived pre-Closing by the Purchaser; provided that no such waiver shall be eligible for inclusion on effective against the Nasdaq Capital Market Purchaser unless it is set forth in a written instrument executed by the Purchaser. In the event that the Purchaser elects to consummate the transactions contemplated by this Agreement even though certain of the conditions set forth in this Section 3.6 have not been all of the satisfied, upon the Closing, any conditions in Section 3.6 that have not otherwise been satisfied shall be identified in a writing to be signed by the Parties and listed and admitted and authorized for trading on the Nasdaq Capital Marketconsidered waived by Purchaser.
Appears in 1 contract
Samples: Asset Purchase Agreement (Steinway Musical Instruments Inc)
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase consummate the Shares and Warrants at the Closing transactions contemplated by this Agreement is subject to the fulfillment to satisfaction of the Purchasers’ reasonable satisfaction, on or prior to following conditions as of the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by the Company set forth in Section 3.1 Article IV hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects at and as of the Effective Date and the Closing Date as though then made and as though the Effective Date and the Closing Date were substituted for the date of this Agreement throughout such representations and warranties;
(b) The Company and the Shareholder shall have performed and complied with all obligations of the covenants and conditions herein agreements required to be performed or observed by it each of them under this Agreement on or prior to the Closing Date.Closing;
(iic) The purchase of DataFlow Stock by the Purchaser hereunder shall not be prohibited by any applicable law or governmental regulation, shall not subject the Purchaser to any penalty, liability or other materially adverse condition under or pursuant to any applicable law or governmental regulation, and shall be permitted by laws and regulations of the jurisdictions to which the Purchaser is subject;
(d) No action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable judgment, decree, injunction, order or ruling would prevent the performance of this Agreement or any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement, cause such transactions to be rescinded or materially and adversely affect the right of the Purchaser to own the DataFlow Stock, and no judgment, decree, injunction, order or ruling shall have been entered that has any of the foregoing effects;
(e) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation Net Assets of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.at least $310,000;
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(ivf) The Company shall have delivered entered into employment agreements, in form satisfactory to the Purchaser, with the employees identified on Schedule 3.5(f);
(g) The transactions contemplated herein shall have been approved by the Purchaser’s Board of Directors;
(h) The parties shall have developed and agreed to a Certificate, executed on behalf of plan covering at least the Company by its Chief Executive Officer or its Chief Financial Officer, dated as of first full year after the Closing Date, certifying under which ownership and control of the Company and its business and operations will be transitioned to the fulfillment of Purchaser. The Shareholder shall cooperate with and assist the conditions specified Purchaser in subsections preparing the transition plan; and
(i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of made such personnel adjustments as the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted parties shall mutually agree prior to Closing. Any condition specified in this Section 3.5 may be waived by the Board of Directors of Purchaser; provided that no such waiver shall be effective against the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened Purchaser unless it is set forth in a writing executed by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities lawsPurchaser.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation obligations of each the Purchaser to purchase consummate the Shares and Warrants at the Closing is transactions contemplated by this Agreement shall be subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the or at Closing Date, of each of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The All representations and warranties made by the Company Seller in Section 3.1 hereof this Agreement and the Schedules delivered by the Seller to the Purchaser pursuant hereto shall be true true, correct and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed complete in all material respects on the date hereof and as of the Closing Date as though such representations and warranties were made as of the Closing Date, and the Seller shall have duly performed or complied with all of the covenants, obligations and conditions herein required to be performed or observed complied with by it under the terms of this Agreement on or prior to the Closing Dateor at Closing.
(iib) The Company There shall have been no material damage, destruction or loss to, or any other material or adverse change in, the Purchased Assets, regardless of insurance coverage, that have not been repaired or replaced by Seller. For avoidance of doubt, in the event of any damage to the facility or equipment that takes it out of production for a material period of time, Purchaser may terminate this agreement upon written notice in accordance with Article 9, notwithstanding payment of replacement cost in accordance with Section 7.2(a)(iv).
(c) All authorizations, consents, waivers, approvals or other actions legally required in connection with the execution, delivery and performance of this Agreement and each of the other Operative Documents, by the Seller and the consummation by the Seller of the transactions contemplated hereby and thereby shall have been obtained and shall be in full force and effect; the Seller shall have obtained in any authorizations, consents, waivers, approvals or other actions required to prevent a timely fashion material breach or default by the Seller under any contract to which the Seller is a party or for the continuation of any agreement to which the Seller is a party and which relates and is material to the Purchased Assets or the Seller, and all material authorizations, consents, permitswaivers, approvals, registrations and waivers approvals or other actions necessary or appropriate for consummation to permit the Purchaser to operate the business of the purchase Seller in compliance with all applicable laws immediately after the Closing shall have been obtained and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iiid) No judgmentPurchaser shall be reasonably satisfied that the Environmental Condition of the Facilities is as represented hereunder.
(e) Prior to or at Closing, 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, the Seller shall have been issueddelivered to the Purchaser all instruments of assignment, transfer and no action or proceeding conveyance identified herein and such other closing documents as shall have been instituted be reasonably requested by any governmental authority, or self-regulatory organization enjoining or preventing the consummation of Purchaser in order to consummate the transactions contemplated hereby or herein that are in form and substance reasonably acceptable to the other Transaction Documents.Purchaser’s legal counsel, including the following:
(ivi) The Company shall have delivered such instruments of sale, transfer, assignment, conveyance and delivery (including all vehicle titles), in form and substance reasonably satisfactory to counsel for the Purchaser, including without limitation the Bxxx of Sale and Assignment and Assumption Agreement substantially as set forth as Exhibit C, the Warranty Deed substantially as set forth as Exhibit D, and the Assignment of License Agreement as set forth as Exhibit A, as are required in order to transfer to the Purchaser good and marketable title to the Purchased Assets, free and clear of all Encumbrances except as provided herein, and a Certificate, executed on behalf valid perpetual fully-paid license for all of the Company by its Chief Executive Officer or its Chief Financial OfficerLicensed Proprietary Rights;
(ii) a title insurance policy, dated as of the Closing Date, certifying issued at Seller’s expense, insuring the fee simple title of the Purchaser to all the real property of the Facilities, subject only to (1) the lien, if any, of current real property taxes, payment of which is not delinquent; (2) objections and exceptions noted in these title insurance policies that have been approved in writing by the Purchaser; and (3) existing rights, easements and customary exclusions listed in the title policy as of the Closing Date that have been approved in writing by the Purchaser (Liability coverage under those title insurance policies shall be at least equal to $700,000);
(iii) a certificate of the Seller over the signature of the President or a Vice President of the Seller, dated the Closing Date, to the fulfillment of effect that (1) the person signing such certificate is familiar with the Agreement and (2) the conditions specified in subsections (iSection 8.2(a), (ii)b) and (c) have been satisfied;
(iv) a certificate of the Secretary or Assistant Secretary of the Seller, (iii) and(vii) dated the Closing Date, as to the incumbency of any officer of the Seller executing this Section 2.2(a).Agreement, each other Operative Document and each other document related thereto and covering such other matters as the Purchaser may reasonably request;
(v) The Company shall have delivered a Certificate, executed on behalf certified copy of (1) the Certificate of Incorporation and by-laws of the Company by its Secretary, dated as Seller and all amendments thereto and (2) the resolutions of the Closing Date, certifying the resolutions adopted by the Seller’s Board of Directors authorizing the execution, delivery and consummation of this Agreement and each other Operative Document and the transactions contemplated hereby and thereby;
(vi) resolutions of the Company approving Seller demonstrating that the transactions contemplated by this Agreement have been approved by the Board of Directors and the other Transaction Documents and the issuance sole stockholder of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filingSeller; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.and
(vii) The Companysuch other documents or instruments as the Purchaser reasonably requests to effect the transactions contemplated hereby.
(f) If, in good faith, the Purchaser or APT engages an investment banking firm acceptable to the Seller of national or regional reputation to render, at the Purchaser’s Common Stock (including or APT’s sole cost and expense, an opinion to the Shares Purchaser or APT as to the fairness to the Purchaser of the consideration to be received by the Purchaser in this transaction, the Purchaser or APT shall have received a favorable fairness opinion. Provided, however, that if such opinion is unfavorable, such investment banker shall identify the price that it would consider fair and the Warrant Shares) Seller shall have the right to reduce the Purchase Price to such amount, which shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Marketconsidered to fully satisfy this condition.
Appears in 1 contract
Samples: Asset Purchase Agreement (Advanced Power Technology Inc)
Conditions to the Purchaser’s Obligations. The obligation several obligations of each Purchaser the Underwriters to purchase the Firm Shares and Warrants at on the Closing is Date and the Additional Shares on the Additional Closing Date, are subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(i) The representations and warranties made by the Company in Section 3.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
(iia) The Company shall have obtained filed the Prospectus with the Commission (including the information required by Rule 430B under the Act) in a timely fashion any the manner and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of within the purchase and sale of time period required by Rule 424(b) under the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) No judgment, writ, order, injunction, award or decree of or by any courtAct, 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) The Company shall have delivered filed a Certificatepost-effective amendment to the Registration Statement containing the information required by such Rule 430B, executed on behalf of and such post-effective amendment shall have become effective. All material required to be filed by the Company by its Chief Executive Officer or its Chief Financial Officer, dated as of pursuant to Rule 433(d) under the Closing Date, certifying to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus Act shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period periods prescribed for such filing; no filings under such Rule 433.
(b) No stop order suspending the effectiveness of the Registration Statement Statement, or any part thereof post-effective amendment to the Registration Statement, shall have been issued be in effect and no proceeding proceedings for that such purpose shall have been initiated instituted or threatened by the Commission, and the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Act objecting to use of the automatic shelf registration statement form.
(c) Subsequent to the execution and delivery of this Agreement and prior to (and including) the Closing Date or the Additional Closing Date, as the case may be:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 3(a)(62) under the Exchange Act; no stop order and
(ii) there shall not have occurred any adverse change, or suspension any development involving a prospective adverse change, on the business condition, financial condition or results of trading operations of the Company and any of its Subsidiaries, and to the knowledge of the Company, of MillerCoors and any of its subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in your judgment, is so material and adverse and that makes it, in your judgment, impractical or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(d) The Underwriters shall have received on the Closing Date and, if applicable, the Additional Closing Date, a certificate, dated the Closing Date or the Additional Closing Date, as the case may be, and signed by an executive officer of the Company, to the effect set forth in Section 4(c)(i) and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date or the Additional Closing Date, as the case may be, and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date or the Additional Closing Date, as the case may be. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date or the Additional Closing Date, as the case may be, an opinion of Xxxxxxx Coie LLP, outside United States counsel for the Company, dated the Closing Date or the Additional Closing Date, as the case may be, substantially in form and substance previously provided to you and reasonably satisfactory to you. Each opinion shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(f) The Underwriters shall have received on the Closing Date or the Additional Closing Date, as the case may be, an opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated Closing Date or the Additional Closing Date, as the case may be, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request for them to pass upon such matters.
(g) The Underwriters shall have received on each of the date hereof, the Closing Date and, if applicable, the Additional Closing Date, a letter dated the date hereof, the Closing Date or the Additional Closing Date, as the case may be, in form and substance satisfactory to the Underwriters and PricewaterhouseCoopers LLP, from PricewaterhouseCoopers LLP, independent public accountants to the Company and its Subsidiaries, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its Subsidiaries contained in, and incorporated by reference into, the General Disclosure Package and the Prospectus; provided, however, that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the third business day prior to the Closing Date and the letter delivered on the Additional Closing Date shall use a “cut-off date” not earlier than the third business day prior to the Additional Closing Date.
(h) The Underwriters shall have received on each of the date hereof, the Closing Date and, if applicable, the Additional Closing Date, a letter dated the date hereof, the Closing Date or the Additional Closing Date, as the case may be, in form and substance satisfactory to the Underwriters and PricewaterhouseCoopers LLP, from PricewaterhouseCoopers LLP, independent public accountants to MillerCoors and its subsidiaries, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of MillerCoors and its subsidiaries contained in, and incorporated by reference into, the General Disclosure Package and the Prospectus; provided, however, that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the third business day prior to the Closing Date and the letter delivered on the Additional Closing Date shall use a “cut-off date” not earlier than the third business day prior to the Additional Closing Date.
(i) The Underwriters shall have received each of the signed Lock-Up Agreements in the form attached as Exhibit A hereto for each person and entity listed in Schedule III hereto, and each such Lock-Up Agreement shall be in full force and effect on the Closing Date and the Additional Closing Date, as the case may be.
(j) The Underwriters shall have received on each of the date hereof, the Closing Date and, if applicable, the Additional Closing Date, a certificate dated the date hereof, the Closing Date or the Additional Closing Date, as the case may be, signed by the Chief Financial Officer of the Company, in form and substance satisfactory to the Underwriters.
(k) The Shares shall have been imposed approved for listing on the NYSE, subject only to notice of issuance at or prior to the Closing Date or the Additional Closing Date, as the case may be.
(l) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any Person with respect to public trading in federal, state, foreign or provincial governmental or regulatory authority that would, as of the Common StockClosing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares by the Company; and no injunction or order of any United States federal or state or court shall have been issued that would, as of the Purchaser Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares by the Company.
(m) The Underwriters shall have received such other documents and certificates as are reasonably requested by you or your counsel. Each certificate signed by any officer of the Prospectus Company and delivered to the Underwriters or their counsel pursuant to, or in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) connection with, this Agreement, shall be eligible for inclusion on deemed to be a representation and warranty by the Nasdaq Capital Market and listed and admitted and authorized for trading on Company to the Nasdaq Capital MarketUnderwriters as to matters covered by such certificate.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser to purchase the Shares and Warrants Notes at the Closing is subject to the fulfillment to the Purchasers’ reasonable such Purchaser’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:such Purchaser (as to itself only):
(ia) The representations and warranties made by the Company in Section 3.1 hereof 4 qualified as to materiality shall be true and correct as of the date of this Agreement and as of the Closing Date as so qualified, except where to the failure to extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be so true and correct does as of such earlier date as so qualified, and, the representations and warranties made by the Company in Section 4 not have a Material Adverse Effectqualified as to materiality shall be true and correct in all material respects at all times as of the date of this Agreement and as of the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and conditions covenants herein required to be performed or observed by it on or prior to the Closing Date.
(iib) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares Securities and Warrantsthe consummation of the other transactions contemplated by the Transaction Documents, all of which shall be and remain so long as necessary in full force and effect.
(iiic) The Company shall have executed and delivered the Registration Rights Agreement.
(d) The Company shall have filed with Nasdaq a Notification Form: Listing of Additional Shares for the listing of the Conversion Shares on Nasdaq, a copy of which shall have been provided to the Purchasers.
(e) The Company shall have received gross proceeds from the sale of the Notes as contemplated hereby of at least Thirteen Million Two Hundred Fifty Thousand Dollars ($13,250,000).
(f) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(ivg) 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 (ia), (iib), (iiig) and(viiand (k) of this Section 2.2(a)6.1.
(vh) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company or any duly authorized committee thereof approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and WarrantsNotes, certifying the current versions of the Certificate Articles of Incorporation 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.
(vii) The Prospectus Purchasers shall have been filed with received an opinion from O’Melveny & Xxxxx LLP, special counsel to the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness Company, dated as of the Registration Statement or any part thereof shall have been issued Closing Date, in form and no proceeding for that purpose shall have been initiated or threatened by substance reasonably acceptable to the Commission; no Purchasers and addressing such legal matters as the Purchasers may reasonably request.
(j) No stop order or order, suspension of trading or delisting shall have been imposed by Nasdaq, the SEC or any Person other governmental or regulatory body with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(viik) The Company’s Common Stock (Company shall have delivered the written consent of Silicon Valley Bank to all of the transactions contemplated hereby, including without limitation the Shares incurrence of Indebtedness hereunder, the issuance of the Notes to the Purchasers, and the Warrant Shares) Stock Pledges, and shall be eligible for inclusion on have delivered such other documents, agreements and instruments relating thereto as are reasonably required by the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital MarketPurchasers.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation obligations of each the Purchaser to purchase and pay for the Shares and Warrants Notes at the Closing is subject and the Option Closing (if applicable) shall be subject, in the Purchaser’s sole discretion, to the fulfillment accuracy of the representations and warranties of the Company in Section 2 hereof, in each case as of the date hereof and as of the Closing Date or Option Closing Date, as the case may be, as if made on and as of the Closing Date or Option Closing Date, as the case may be, to the Purchasers’ accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) The Purchaser shall have received opinions, dated the Closing Date or Option Closing Date, as the case may be, of Starr, Gern, Xxxxxxx & Xxxxx, counsel for the Company, to the effect set forth in Exhibit C hereto and containing reasonable satisfactionand customary assumptions and qualifications and otherwise in form and substance satisfactory to the Purchaser.
(b) The Purchaser shall have received a certificate, dated the Closing Date or Option Closing Date, as the case may be, of the Chief Executive Officer and the Chief Financial Officer of the Company certifying: (i) that the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date or Option Closing Date, as the case may be, (ii) that the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date or Option Closing Date, as the case may be; and (ii) as to the statements made in paragraph (c) of this section.
(c) Subsequent to the following conditionsexecution and delivery of this Agreement, any of which may be waived in writing by the Purchasers:
there shall not have been (i) The representations and warranties made any change in the capital stock or long-term debt, (ii) any material loss or interference sustained by the Company or any of the Subsidiaries with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding or (iii) any material adverse change, or any development involving a prospective material adverse change, in Section 3.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The condition (financial or otherwise), management, business prospects, net worth or results of operations of the Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to any of the Closing DateSubsidiaries.
(iid) There shall not have occurred any invalidation of Rule 144A by any court or any withdrawal or proposed withdrawal of any rule or regulation under the Securities Act or the Exchange Act by the SEC or any amendment or proposed amendment thereof by the SEC which in the reasonable judgment of the Purchaser would materially impair the ability of the Purchaser to purchase, hold or effect resales of the Notes.
(e) The Company purchase of and payment for the Notes by the Purchaser hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation (including, without limitation, Regulation T, U or X of the Federal Reserve Board).
(f) Each of the Transaction Documents shall be satisfactory in form and substance to the Purchaser and shall have obtained in a timely fashion any been executed and delivered by all material consents, permits, approvals, registrations the respective parties thereto and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iiig) 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, or self-regulatory organization enjoining or preventing All proceedings taken in connection with the consummation issuance of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving Notes and the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and WarrantsAgreement, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related all documents on behalf of and papers relating thereto shall be reasonably satisfactory to the Company.
(vi) Purchaser. The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus copies of such papers and documents as it may reasonably request in accordance with the federal securities lawsconnection therewith, all in form and substance reasonably satisfactory to them.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each the ----------------------------------------- Purchaser to purchase consummate the Shares and Warrants at the Closing transactions contemplated by this Agreement is subject to the fulfillment to satisfaction of the Purchasers’ reasonable satisfaction, on or prior to following conditions as of the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by the Company set forth in Section 3.1 Article V and Article VI hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects at and as of the Closing Date as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties (without taking into account any disclosures made by the Company or the Sellers to the Purchaser pursuant to Sections 4.1(g), 5.24 and 6.6 hereof);
(b) The Company and each Seller shall have performed and complied in all obligations material respects with all of the covenants and conditions herein agreements required to be performed or observed by it each of them under this Agreement on or prior to the Closing;
(c) All material consents by third parties that are required for the transfer of the Acquired Stock to the Purchaser, and the consummation of the other transactions contemplated hereby or that are required in order to prevent a breach of, a default under, a termination or modification of, or any acceleration of, any obligations under any material contract to which the Company or any of its Subsidiaries is a party shall have been obtained, and payoff letters with respect to all of the Company's and its Subsidiaries' Indebtedness outstanding as of the Closing and releases of any and all Liens held by third parties against property of the Company or any of its Subsidiaries shall have been obtained, all on terms reasonably satisfactory to the Purchaser;
(d) All governmental filings, authorizations and approvals that are required for the transfer of the Acquired Stock to the Purchaser and the consummation of the other transactions contemplated hereby shall have been duly made and obtained on terms reasonably satisfactory to the Purchaser and the applicable waiting periods, if any, under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), shall have expired or been ------- terminated;
(e) No action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable judgment, decree, injunction, order or ruling would prevent the performance of this Agreement or any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement, cause such transactions to be rescinded or materially and adversely affect the right of the Purchaser to own, operate or control the Company or any of its Subsidiaries, and no judgment, decree, injunction, order or ruling shall have been entered which has any of the foregoing effects;
(f) Except as otherwise specified in writing by the Purchaser to the Representative, all of the Company's and each of its Subsidiaries' directors and officers shall have resigned and such resignations shall be effective as of the Closing Date.;
(iig) The Company shall have obtained in a timely fashion terminated any and all material consentsagreements, permitsarrangements or plans relating to its or to any of its Subsidiaries' equity securities, approvalsand all such agreements, registrations arrangements and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which plans shall be of no further force and remain so long as necessary effect and there shall be no rights or obligations outstanding under any such agreements, arrangements or plans;
(h) The Company and each of Xxxxxxx X. Xxxxxxxxx and Xxxxx X. XxXxxxx shall have entered into an agreement relating to his employment with the Company (the "Employment Agreements"), substantially in the form of Exhibit C attached --------------------- --------- hereto, and the Employment Agreements shall be in full force and effect.;
(iiii) 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, The Purchaser shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) The Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer or its Chief Financial Officerreceived an opinion, dated as of the Closing Date, certifying of Xxxxxxxx Xxxxxx, counsel to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading Sellers, substantially in the Common Stockform of Exhibit D attached hereto; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.---------
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation obligations of each Purchaser of the Purchasers hereunder required to purchase the Shares and Warrants be performed at the Closing is subject shall be subject, at its election, to the fulfillment to satisfaction or waiver (which waiver, if so requested by the Purchasers’ reasonable satisfactionCompany, on shall be made in writing), at or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by of the Company in Section 3.1 hereof made herein shall be true and correct in all material respects (disregarding, for purposes of such determination of materiality, all qualifications in such representations and warranties regarding "material") as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except where that representations and warranties made herein that by their terms speak as of the failure to date of this Agreement or some other date shall be so true and correct does not have a Material Adverse Effect. only as of such date).
(b) The Company shall have performed in all material respects all obligations and conditions herein required agreements, and complied in all material respects with all covenants, contained in this Agreement, to be performed or observed and complied with by it on at or prior to the Closing Date.
(iic) The Company shall have obtained in a timely fashion any All documents, instruments, agreements and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of arrangements relating to the purchase and sale of transactions contemplated by the Shares and Warrants, all of which Documents shall be and remain so long as necessary in full force and effect.
(iii) 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 authoritysatisfactory to such Purchaser, shall have been issuedexecuted and delivered by the parties thereto and no party to any of the foregoing (other than the Purchasers) shall have breached any of its material obligations thereunder.
(d) (i) Since September 30, 2001, no change, occurrence or development shall have occurred, been threatened or become known to such Purchaser that could reasonably be expected to have a Material Adverse Effect on the business, operations, prospects, properties or condition (financial or other) of the Company and Screening Services, taken as a whole, which, in the reasonable judgment of such Purchaser, is or may be materially adverse to the Company and Screening Services, taken as a whole, and no action (ii) none of the Purchasers shall have become aware of any information or proceeding other matter relating to the Company (x) of which the Company (but not the Purchasers) had knowledge on or prior to the date of this Agreement, (y) that, in such Purchaser's reasonable judgement, is inconsistent with any information or other matter relating to the Company disclosed to such Purchaser by the Company or any of its representatives prior to the date of this Agreement, and (z) would have been viewed by such Purchaser, in its reasonable judgment, as having materially and adversely altered the total mix of information made available to such Purchaser prior to the date of this Agreement. For purposes of this Section 7.2(d), the Company shall be deemed to have "knowledge" of a particular fact or other matter if (I) any individual who is serving, or who has at any time served, as a director, officer or management-level employee of the Company is actually aware of such fact or other matter; or (II) a prudent individual serving as a director, officer or management-level employee of the Company could be expected to discover or otherwise become aware of such fact or other matter in the diligent exercise of his or her duties in such capacity.
(e) Since September 30, 2001, the business of the Company shall have been instituted by any governmental authorityoperated in compliance with all Applicable Laws, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect on the Company and Screening Services, taken as a whole.
(f) There shall be no litigation, proceeding or self-regulatory organization enjoining other action seeking an injunction or preventing other restraining order, damages or other relief from a Governmental Authority or other Person pending or threatened which, in the reasonable judgment of such Purchaser, would materially adversely affect the consummation of the transactions contemplated by the Documents on the terms contemplated hereby and thereby and there shall be no litigation, proceeding or other action (including, without limitation, relating to environmental matters or the Benefit Plans) pending or threatened against the Company or Screening Services which could, individually or in the other Transaction Documentsaggregate, reasonably be expected to have a Material Adverse Effect.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation obligations of each Purchaser hereunder required to purchase the Shares and Warrants be performed at the Closing is subject shall be subject, at its election, to the fulfillment to satisfaction or waiver (which waiver, if so requested by the Purchasers’ reasonable satisfactionCompany, on shall be made in writing), at or prior to the Closing Date, Date of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by of the Company contained in Section 3.1 hereof this Agreement shall be true and correct in all material respects (disregarding, for purposes of such determination of materiality, all qualifications in such representations and warranties regarding "material") as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except where that representations and warranties made herein that by their terms speak as of the failure to date of this Agreement or some other date shall be so true and correct does not have a Material Adverse Effect. only as of such date).
(b) The Company shall have performed in all material respects all obligations and conditions herein required agreements, and complied in all material respects with all covenants, contained in this Agreement, to be performed or observed and complied with by it on at or prior to the Closing Date.
(iic) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of provide the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 Purchasers with evidence satisfactory to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by Purchasers that the Board of Directors of the Company approving (i) has approved the transactions contemplated in the Documents and in the documents and instruments arising in connection therewith and (ii) has approved the subject matter of any agreements, instruments or other documents to which any Purchaser and the Company are a party or that are executed as of the date hereof and are disclosed to the Company in writing prior to or on the date hereof.
(d) All documents, instruments, agreements and arrangements relating to the transactions contemplated by this Agreement the Documents shall be satisfactory to the Purchasers, shall have been executed and delivered by the other Transaction Documents parties thereto and the issuance no party to any of the Shares foregoing (other than the Purchasers) shall have breached any of its material obligations thereunder.
(e) The Company shall have provided the Purchasers with the unaudited balance sheet and Warrants, certifying the current versions income statement of the Certificate of Incorporation Company as at and Bylaws for the year ended December 31, 2000.
(f) (i) Since September 30, 2000, no change, occurrence or development shall have occurred, been threatened or become known to the Purchasers that could reasonably be expected to have a Material Adverse Effect on the business, operations, properties or condition (financial or other) of the Company and certifying its Subsidiaries, taken as a whole and (ii) the Purchasers shall not have become aware of any information or other matter relating to the signatures Company (x) of which the Company (but not the Purchasers) had Knowledge on or prior to the date of this Agreement, (y) that, in the Purchasers' reasonable judgment, is inconsistent with any information or other matter relating to the Company disclosed to the Purchasers by the Company or any of its representatives prior to the date of this Agreement, and authority (z) would have been viewed by the Purchasers, in their reasonable judgment, as having materially and adversely altered the total mix of persons signing information made available to the Transaction Documents and related documents on behalf Purchasers prior to the date of this Agreement. For purposes of this Section 7.2(f), the Company shall be deemed to have "knowledge" of a particular fact or other matter if (i) any individual who is serving, or who has at any time served, as a director, officer or management-level employee of the CompanyCompany is actually aware of such fact or other matter; or (ii) a prudent individual serving as a director, officer or management-level employee of the Company could be expected to discover or otherwise become aware of such fact or other matter in the diligent exercise of his or her duties in such capacity.
(vig) The Prospectus There shall be no litigation, proceeding or other action seeking an injunction or other restraining order, damages or other relief from a Governmental Authority or other Person pending or threatened which, in the reasonable judgment of such Purchaser, would materially adversely affect the consummation of the transactions contemplated by the Documents on the terms contemplated hereby and thereby.
(h) All governmental and regulatory approvals and clearances and all third-party consents necessary for the consummation of all of the transactions contemplated at such Closing shall have been filed with obtained and shall be in full force and effect and the Commission pursuant Purchasers shall be reasonably satisfied that the consummation of such transactions does not and will not contravene any Applicable Law, except to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement extent any contravention or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated contraventions, individually or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and aggregate, could not, individually or in the Purchaser shall aggregate, reasonably be expected to have received the Prospectus in accordance with the federal securities lawsa Material Adverse Effect.
(viii) Purchasers shall have completed their due diligence review of the Company and its Subsidiaries and shall have determined that the results thereof are wholly satisfactory to Purchasers in the sole exercise of their discretion. In making this determination, the Purchasers shall owe no duty or obligation to the Company and shall act solely in the best interests of the Purchasers as determined by each Purchaser.
(j) The Company’s Common Stock 's General Counsel and Cravath, Swaine & Xxxxx, counsel to the Company, shall have delivered to the Purchasers an opinion from each of them, dated as of such applicable Closing Date, addressed to the Purchasers, substantially in the forms attached hereto as Exhibit B and Exhibit C, respectively.
(including k) Each of the Shares Company and the Warrant SharesPurchasers shall have executed and delivered each of the Documents, as applicable.
(l) The Company shall be eligible for inclusion on have provided the Nasdaq Capital Market Purchasers with all other documents, certificates and listed and admitted and authorized for trading on other instruments reasonably requested by the Nasdaq Capital MarketPurchasers.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser to purchase and pay for the Shares Property and Warrants at the Closing other assets to be transferred hereunder is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on satisfaction (or prior to waiver by Purchaser) as of the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(i) The Each of the representations and warranties made by the Company Seller in Section 3.1 hereof 8.1 shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations when made and conditions herein required to be performed or observed by it on or prior to the Closing DateDate (including no material adverse change in any representations, warranties or exhibits to this Agreement which are updated as required or permitted by this Agreement and delivered at the Closing).
(ii) The Company Seller shall have obtained performed or complied in a timely fashion any and all material consentsrespects with each obligation and covenant required by the Tenant Leases, permitsany applicable Governmental Regulations, approvalsand by this Agreement (including, registrations without limitation, Section 10.3 hereof) to be performed or complied with by Seller on or before the Closing.
(iii) With respect to the Tenant Leases in which an Affiliate of Seller is the Tenant thereunder, there shall be no monetary or material non-monetary defaults under such Tenant Leases.
(iv) With respect to the Tenant Leases under which the Tenant thereunder is not an Affiliate of Seller, there shall be (1) no monetary defaults which in the aggregate exceed One Hundred Thousand and waivers necessary No/100 Dollars ($100,000.00), and (2) no material non-monetary defaults.
(v) No order or appropriate for injunction of any court or administrative agency of competent jurisdiction nor any Governmental Regulation promulgated by any Authority of competent jurisdiction shall be in effect as of the Closing which restrains or prohibits the transfer of the Property or the consummation of any other transaction provided for herein.
(vi) No action, suit or other proceeding shall be pending which shall have been brought by any person or entity (other than the parties hereto and their affiliates) (i) to restrain, prohibit or change in any material respect the purchase and sale of the Shares Property or the consummation of any transaction provided for herein, or (ii) seeking material damages with respect to such purchase and Warrants, all of which shall be and remain so long as necessary in full force and effectsale or any other transaction provided for herein.
(iiivii) 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, Purchaser shall have been issued, received Tenant Estoppel Certificates as required by Section 7.2 and no action or proceeding shall have been instituted by any governmental authority, or self-regulatory organization enjoining or preventing the consummation none of the transactions contemplated hereby same shall contain any adverse factual information not otherwise disclosed to Purchaser in writing on or in the other Transaction Documentsbefore June 13, 2005.
(ivviii) The physical condition of the Property shall be substantially the same on the Closing Date as on the Effective Date, reasonable wear and tear and loss by casualty excepted (subject to the provisions of Article VII).
(ix) The Title Company shall have be irrevocably and unconditionally committed to issue to Purchaser the Final Title Policy.
(x) The executed amendment to the Centex Services Company Lease (the “Centex Service Company Lease Amendment”), which Centex Service Company Lease Amendment shall be in the form attached hereto as Exhibit J, shall be delivered to Purchaser in the manner required under Section 10.3.
(xi) The executed amendment to the Centex Construction Group Lease (the “Centex Construction Group Lease Amendment”), which Centex Construction Group Lease Amendment shall be in the form attached hereto as Exhibit Z, shall be delivered to Purchaser in the manner required under Section 10.3.
(xii) The Centex Estoppel Certificates shall be delivered to Purchaser in the manner required under Sections 7.2 and 10.3.
(xiii) The Contract Guaranty shall be delivered to Purchaser in the manner required under Section 10.3.
(xiv) The Centex Service Company Lease Guaranty and the Centex Construction Group Lease Guaranty shall be delivered to Purchaser in the manner required under Section 10.3.
(xv) There shall be no proceeding pending by or against Seller or any Tenant under the Federal Bankruptcy Code or any similar law.
(xvi) There shall be no material adverse change in the information set forth in the Rent Roll delivered pursuant to Section 5.2 and the Rent Roll delivered pursuant to Section 10.3(h) except changes arising from the acts of Seller which do not constitute a Certificate, executed on behalf breach of the representations, warranties or covenants of Seller set forth in this Agreement.
(xvii) Purchaser shall have received from the Title Company by its Chief Executive Officer or its Chief Financial Officer, dated the Title Company Coverage Letter as described in Section 4.10 below. Purchaser’s closing of the Closing Datepurchase provided for herein shall evidence Purchaser’s satisfaction with or waiver of each of such conditions. If any condition to Purchaser’s conditions set forth in this Section 3.5 is not satisfied to Purchaser’s reasonable satisfaction, certifying to Purchaser may terminate this Agreement and, in the fulfillment of the conditions specified in subsections event a condition under subsection (i), (ii), (iii), (x), (xi), (xii), (xiii), (xiv) and(viiand (xvii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificateis not satisfied or waived by Purchaser at Closing, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities lawsbe entitled to pursue its remedies under Section 13.1.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase the Shares and Warrants at the Closing Securities is subject to the fulfillment to prior satisfaction or waiver in writing by the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, Purchaser of all of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by of the Company contained in Section 3.1 hereof Article IV shall be true in all material respects as of the Closing Date as though made at and correct except where as of the failure to be so true and correct does not have a Material Adverse Effect. Closing Date.
(b) The Company shall have performed performed, in all material respects respects, all covenants, agreements and obligations and conditions herein required to be performed or observed by it on or prior to the Closing DateDate pursuant to this Agreement.
(iic) A Credit Agreement in the form attached hereto as Exhibit A (the "Credit Agreement"), a Warrant Agreement in the form attached hereto as Exhibit B (the "Warrant Agreement"), a Security Agreement in the form attached hereto as Exhibit C (the "Security Agreement"), a Registration Rights Agreement in the form attached hereto as Exhibit D (the "Registration Rights Agreement") and an Amended and Restated Ophthalmology Development & License Agreement in the form attached hereto as Exhibit E (the "Amending Agreement") shall have been duly executed and delivered by the parties thereto.
(d) The Purchaser shall have received the opinion of Nida & Maloney PC in the form attached hereto as Exhibit F.
(e) On or xxxxx to the Closing Date, the Company shall tender to the Purchaser certificate(s) representing the Securities.
(f) The Company and the Purchaser shall have obtained in a timely fashion any and all material consentsnecessary authorizations, permits, approvals, registrations and waivers consents or approvals or other orders or actions necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby by this Agreement, and the Company and the Purchaser shall have made all necessary filings with any court, administrative agency, or in other governmental or regulatory body or authority required for the other Transaction Documentsexecution and delivery by the Company and the Purchaser of this Agreement or the Company's and the Purchaser's consummation of the transactions contemplated hereby.
(ivg) The Company No action, suit, proceeding or investigation by or before any court, administrative agency or other governmental authority shall have delivered a Certificatebeen instituted or threatened which may restrain, executed on behalf prohibit or invalidate any 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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 CompanyAgreement.
(vih) The Prospectus shall have been filed with waiting period (including any extension thereof) applicable to the Commission Purchaser's acquisition of the Securities pursuant to Rule 424(b) this Agreement under the Securities Hart-Scott-Rodino Antitrust Improvements Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof 1976, as amended, shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; xxxx xxxxxxx xx xeen terminated, and the Purchaser shall have received evidence thereof satisfactory to the Prospectus in accordance with the federal securities lawsPurchaser.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Equity Investment Agreement (Pharmacia & Upjohn Inc)
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase consummate the Shares and Warrants at the Closing Transactions is subject to the fulfillment to satisfaction of the Purchasers’ reasonable satisfaction, on or prior to following conditions as of the Closing Date, of the following conditions, any one or more of which may be waived in writing by the PurchasersPurchaser:
(ia) The representations and warranties made by the Company set forth in Section 3.1 hereof Article 2 shall be true and correct except where in all material respects as of the failure to date of this Agreement and at and as of the Closing Date as though then made (other than those representations and warranties that address matters as of particular dates which shall be so true and correct does not have a Material Adverse Effect. in all material respects at and as of such particular dates);
(b) The Company Selling Parties and the Acquired Companies shall have performed in all material respects all obligations of the covenants and conditions herein agreements required to be performed by each of them under this Agreement at or observed prior to the Closing;
(c) No writ, judgment, decree, injunction or similar order or notice shall have been entered or issued by it any court of competent jurisdiction which would prevent the performance of this Agreement or the consummation of any material part of the Transactions, declare void or unlawful the Transactions or cause such Transactions to be rescinded, and there shall not have been commenced any Legal Proceeding brought by any Governmental Body involving any challenge to, or seeking damages or other relief in connection with, any of the transactions contemplated by this Agreement;
(d) Since the date of this Agreement, there shall not have occurred a Material Adverse Effect;
(e) The Acquired Companies shall have terminated the Amended and Restated Buy-Sell Agreement, dated as of July 31, 2010, by and among the undersigned stockholders thereto along with any other stockholder of the US Company and the US Company and the Shareholder Voting and Come Along Agreement, dated as of July 31, 2010, by and among the undersigned stockholders thereto along with any other stockholder of the US Company and the US Company;
(f) Each of the Acquired Companies Employees listed on or Schedule 5.2(f) (the “Key Employees Schedule”) shall have accepted an employment offer of the Purchaser, shall have executed a Non-Competition Agreement and an Offer Letter with the Purchaser and shall be available for work as of the Closing Date. At least eighty percent (80%) of the Acquired Companies Employees not listed on the Key Employees Schedule who are employed with one of the Acquired Companies as of the date hereof shall continue to be employed by such Acquired Company and shall not have indicated their intent to terminate their employment with such Acquired Company;
(g) The Purchaser shall have received from the Acquired Companies and the Selling Parties, as applicable, the deliverables set forth in Section 1.4(b);
(h) Each of the Acquired Companies shall have delivered to the Purchaser each of the following:
(i) a certificate in the form set forth in Exhibit D (the “Company Closing Certificate”), dated the Closing Date, stating that the preconditions specified in subsections (a), (b), (d) and the second sentence of (f) above, as they relate to such Acquired Companies delivering the certificate, have been satisfied;
(ii) a certificate of the Selling Parties in the form set forth in Exhibit E (the “Seller Closing Certificate” and, together with the Company Closing Certificate, the “Closing Certificates”), dated the Closing Date, stating that the preconditions specified in subsections (a) and (b) above, as they relate to such Selling Parties delivering the certificate, have been satisfied;
(iii) at least two (2) Business Days prior to the Closing Date., appropriate payoff letters, together with evidence of arrangements to deliver UCC-3 termination statements or similar documents evidencing the termination of all liens, security interests, mortgages and other encumbrances held by the lenders under the Closing Indebtedness, including specifications in such payoff letter that promptly following payment of such amount, such Person will release all security interests and encumbrances with respect to such indebtedness and terminate the underlying loan agreements and any associated guarantees, and appropriate invoices or other similar documentation, if applicable, in respect of all Transaction Expenses and Change of Control Payments to be paid at Closing pursuant to Section 1.4(b)(iii); and
(iiiv) certified copies of the resolutions duly adopted by the board of directors of each of the Acquired Companies authorizing its execution, delivery and performance of the Transactional Agreements to which each of the Acquired Companies is a party, and the consummation of all the Transactions contemplated hereby and thereby;
(i) The Company Purchaser shall have obtained in received evidence satisfactory to the Purchaser that each of Ateb Properties LLC and Ateb Holdings LLC has changed its corporate name to a timely fashion name that does not include the word “Ateb” or any variation thereof; and
(j) The Amended Lease, dated as of November 28, 2016, for the Leased Property at 11000 Xxxxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxx Xxxxxxxx xnd the subordination and all material consents, permits, approvals, registrations non-disturbance agreement executed by the landlord and waivers necessary or appropriate for consummation the lender of the purchase and sale of the Shares and Warrants, all of which such Leased Property shall be and remain so long as necessary in full force and effect, without amendment thereto.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase consummate the Shares and Warrants at the Closing transactions contemplated by this Agreement is subject to the fulfillment satisfaction of the following conditions as of the Closing Date:
(a) The representations and warranties set forth in Article IV hereof shall be true and correct in all material respects (except that the representations and warranties which are qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects) at and as of the Closing Date as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties;
(b) Each Seller and the Stockholder shall have performed and complied with all of the covenants and agreements required to be performed by each of them under this Agreement on or prior to the Purchasers’ reasonable satisfactionClosing;
(c) The purchase of the Acquired Assets by the Purchaser hereunder shall not be prohibited by any applicable law or governmental regulation, shall not subject the Purchaser to any penalty, liability or other onerous condition under or pursuant to any applicable law or governmental regulation, and shall be permitted by laws and regulations of the jurisdictions to which the Purchaser is subject;
(d) No action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable judgment, decree, injunction, order or ruling would prevent the performance of this Agreement or any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement, cause such transactions to be rescinded or materially and adversely affect the right of the Purchaser to own, operate or control the Acquired Assets or the Business, and no judgment, decree, injunction, order or ruling shall have been entered which has any of the foregoing effects;
(e) Payoff letters with respect to all of the Indebtedness of either Seller or Highland Financial Services, Inc. secured by any of the Acquired Assets outstanding as of the Closing, if any, and releases of any and all Liens held by third parties against the Acquired Assets shall have been obtained, all on terms reasonably satisfactory to the Purchaser;
(f) On or prior to the Closing Date, the Stockholder shall have delivered to the Purchaser all of the following conditions, any of which may be waived in writing by the Purchasersfollowing:
(i) The representations a certificate from the Sellers and warranties made by the Company Stockholder in Section 3.1 hereof shall be true and correct except where a form reasonably satisfactory to the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to Purchaser, dated the Closing Date., stating that the preconditions specified in Sections 3.1(a) through (e), have been satisfied;
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation certified copies of the purchase and sale resolutions of the Shares Stockholder and Warrants, all the Sellers' boards of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company directors approving the transactions contemplated by this Agreement;
(iii) certificates of any state of the United States where each of the Sellers are qualified to do business providing that such Seller is in good standing; and
(iv) such other documents or instruments as the Purchaser may reasonably request to effect the transactions contemplated hereby;
(g) the Purchaser and the Stockholder and/or his Affiliates, as the case may be, shall have entered into New Leases, each substantially in the form of Exhibit B attached hereto (the "New Leases"), covering each parcel of Real Property owned or managed by Stockholder and/or his Affiliates and used in the Business to replace each Terminated Lease;
(h) The Purchaser, the Sellers and the Stockholder shall have entered into the Escrow Agreement and the other Transaction Documents Escrow Agreement shall be in full force and effect, and shall not have been amended or modified, as of the Closing;
(i) The Purchaser, Parent, the Sellers and the issuance other parties thereto shall have entered into a Transition Services Agreement in form and substance attached hereto as Exhibit C (the "Transition Services Agreement") and the Transition Services Agreement shall be in full force and effect, and shall not have been amended or modified, as of the Shares Closing; and
(j) All proceedings to be taken by the Sellers, and Warrants, certifying the current versions Stockholder in connection with the consummation of the Certificate of Incorporation Closing Transactions and Bylaws the other transactions contemplated hereby and all certificates, instruments and other documents required to be delivered by the Sellers, and the Stockholder to effect the transactions contemplated hereby reasonably requested (including, without limitation, the assignment by Stockholder of the Company and certifying as to the signatures and authority items described in Section 2.1(a)(i) of persons signing the Transaction Documents and related documents on behalf of the Company.
(vithis Agreement) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received be reasonably satisfactory in form and substance to the Prospectus Purchaser. Any condition specified in accordance with this Section 3.1 may be waived by the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) Purchaser; provided that no such waiver shall be eligible for inclusion on effective against the Nasdaq Capital Market and listed and admitted and authorized for trading on Purchaser unless it is set forth in a writing executed by the Nasdaq Capital MarketPurchaser.
Appears in 1 contract
Samples: Asset Purchase Agreement (First Acceptance Corp /De/)
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser hereunder to purchase the its Funded Shares and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on satisfaction (or prior to the Closing Date, waiver by each Purchaser) of each of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by of the Company Corporation in Section 3.1 hereof shall be true and correct except where as of the failure date of this Agreement and as of the Closing Date, as though made on and as of such date, and the Corporation shall have complied with all its agreements contained herein and the Corporation shall have performed, satisfied and complied with all covenants, agreements and conditions required by this Agreement, the schedules and exhibits attached hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder (collectively, the “Transaction Documents”) to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed performed, satisfied or observed complied with by it on at or prior to the Closing, and the Corporation shall have furnished to the Purchasers a certificate, dated the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) The Company shall have delivered a Certificateapplicable, executed on behalf of the Company Corporation by each of its Chief Executive Officer or its and Chief Financial Officer, certifying as to the foregoing.
(b) The Corporation shall have furnished to the Purchasers a certificate, dated as of the Closing Date, certifying to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company Corporation by each of its SecretaryChief Executive Officer and Chief Financial Officer, dated certifying that such officers have examined the Financial Statements (as defined in Section 3.1(e) hereof) and, in their opinion (except to the extent superseded by statements in later-prepared documents comprising part of the Financial Statements and delivered to the Purchasers), as of such date, the Financial Statements do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, with respect to the respective periods covered by such Financial Statements.
(c) From the date hereof to the Closing Date, certifying there shall not have occurred any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the resolutions adopted by date hereof but which become known during such period) that, individually or in the Board aggregate, has had, or would reasonably be expected to have a Material Adverse Effect (for purposes of Directors this Agreement, “Material Adverse Effect” means a material adverse effect on (i) the business, results of operation or financial condition of the Company approving Corporation and its Subsidiaries taken as a whole; provided, however, that the term Material Adverse Effect shall not for purposes of this clause (i) be deemed to include the effects of (A) changes after the date of this Agreement (the “Signing Date”) in general business, economic or market conditions (including changes generally in prevailing interest rates, credit availability and liquidity, currency exchange rates and price levels or trading volumes in the United States or foreign securities or credit markets), or any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism, in each case generally affecting the industries in which the Corporation and its Subsidiaries operate, (B) changes or proposed changes after the Signing Date in generally accepted accounting principles in the United States (“GAAP”) or regulatory accounting requirements, or authoritative interpretations thereof: or (C) changes or proposed changes after the Signing Date in securities, banking and other laws of general applicability or related policies or interpretations of Governmental Authorities (in the case of each of these clauses (A), (B) and (C), other than changes or occurrences to the extent that such changes or occurrences have or would reasonably be expected to have a materially disproportionate adverse effect on the Corporation and its Subsidiaries taken as a whole relative to comparable U.S. banking or financial services organizations); or (ii) the ability of the Corporation to consummate the transactions contemplated by this Agreement hereby and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents perform its obligations hereunder on behalf of the Companya timely basis.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation obligations of each Purchaser to purchase the Shares Property from Seller and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(i) The representations and warranties made by the Company in Section 3.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving consummate the transactions contemplated by this Agreement are subject to the satisfaction, at all times prior to and the other Transaction Documents and the issuance as of the Shares and WarrantsClosing (or such other time period specified below), certifying the current versions of each of the Certificate of Incorporation and Bylaws following conditions:
a. All of the Company representations and certifying warranties of Seller set forth in this Agreement shall be true at all times prior to, at and as to of, the signatures Closing in all material respects and authority of persons signing Seller shall deliver a Closing Certificate in substantially the Transaction Documents same form attached hereto as Exhibit D updating such representations and related documents on behalf warranties.
b. Seller shall have delivered, performed, observed and complied with, all of the Companyitems, instruments, documents, covenants, agreements and conditions required by this Agreement to be delivered, performed, observed and complied with by it prior to, or as of, the Closing.
(vi) The Prospectus c. Seller shall not be in receivership or dissolution or have made any assignment for the benefit of creditors, or admitted in writing its inability to pay its debts as they mature, or have been adjudicated a bankrupt, or have filed a petition in voluntary bankruptcy, a petition or answer seeking reorganization or an arrangement with creditors under the federal bankruptcy law or any other similar law or statute of the United States or any state and no such petition shall have been filed against it.
d. No material or substantial adverse change shall have occurred with respect to the Commission pursuant condition, financial or otherwise, of the Seller or the Property.
e. Neither the Property nor any part thereof or interest therein shall have been taken by execution or other process of law in any action prior to Rule 424(bClosing.
f. Seller shall have obtained and delivered to Purchaser a current report, dated no more than ten (10) under days prior to this Agreement, from a licensed pest control company reasonably acceptable to Purchaser, and which must show the Securities Act within Property to be free of all termite, or other destructive insect and pest infestation.
g. During the applicable time period prescribed Review Period, Purchaser shall have satisfactorily completed an inspection of the Property with respect to the physical condition thereof by agents or contractors selected by Purchaser.
h. During the Review Period, Purchaser shall have received, in form acceptable to Purchaser, evidence of compliance by the Property with all building codes, zoning ordinances and other governmental entitlements as necessary for the operation of the Property for the current and intended use, including, without limitation, certificates of occupancy and such filing; other permits, licenses, approvals, agreements and authorizations as are required for the operation of the Property for the current and intended use and satisfactory evidence of no stop order suspending violations of building or other codes or laws.
i. During the Review Period, all necessary approvals, consents and the like of third parties to the validity and effectiveness of the Registration Statement or any part transactions contemplated hereby have been obtained.
j. During the Review Period, Purchaser is reasonably satisfied that the Property is sufficient and adequate for Seller to carry on the business now being conducted thereon and the Property is in good condition and repair as reasonably required for the proper operation and use thereof in compliance with applicable laws.
k. During the Review Period, Purchaser has reviewed and satisfied itself with respect to the Due Diligence Materials and shall not have terminated this Agreement pursuant to the provisions of Section 4.2 hereof.
l. No material portion of the Property shall have been issued and no proceeding for that purpose destroyed by fire or casualty.
m. No condemnation, eminent domain or similar proceedings shall have been initiated commenced or threatened by with respect to any material portion of the Commission; no stop order or suspension of trading Property.
n. Purchaser shall have been imposed by any Person with respect successful in causing the formation of a real estate investment trust whose interests have been sold to the public trading and in the Common Stock; and the Purchaser connection therewith shall have received the Prospectus raised capital in accordance with the federal securities lawsan amount not less than $100,000,000.00.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Wackenhut Corrections Corp)
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser to purchase the Shares and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable such Purchaser’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:such Purchaser (as to itself only):
(i) The representations and warranties made by the Company in Section 3.1 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except where to the failure to extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be so true and correct does as of such earlier date, and, the representations and warranties made by the Company in Section 3 hereof not have a Material Adverse Effectqualified as to materiality shall be true and correct in all material respects 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 in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and conditions covenants herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares Securities and Warrantsthe consummation of the other transactions contemplated by the Transaction Documents, all of which shall be and remain so long as necessary in full force and effect.
(iii) The Company shall have executed and delivered the Registration Rights Agreement.
(iv) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(ivv) The Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer or its Chief Financial OfficerPresident, dated as of the Closing Date, certifying to the fulfillment of the conditions specified in subsections (i), (ii), (iiiiv) and(viiand (ix) of this Section 2.2(a2.3(a).
(vvi) The Company shall have delivered a Certificate, executed on behalf of the Company by its SecretaryGeneral Counsel, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and WarrantsSecurities, certifying the current versions of the Certificate of Incorporation 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.
(vivii) The Prospectus Company shall have been filed with executed and delivered the Commission pursuant to Rule 424(bRegistration Rights Agreement.
(viii) under The Purchasers shall have received an opinion from Xxxxxx & Xxxxx LLP, the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness Company’s counsel, dated as of the Registration Statement or any part thereof shall have been issued Closing Date, in form and no proceeding for that purpose shall have been initiated or threatened by substance reasonably acceptable to the Commission; no Purchasers and addressing such legal matters as the Purchasers may reasonably request.
(ix) No stop order or suspension of trading shall have been imposed by Nasdaq, the SEC or any Person other governmental or regulatory body with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Securities Purchase Agreement (Hudson Holding Corp)
Conditions to the Purchaser’s Obligations. The obligation obligations of each the Purchaser to purchase and pay for the Shares and Warrants at on the Closing is Date are subject to the fulfillment following conditions:
(a) The Purchaser shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the Purchasers’ reasonable satisfaction, effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or prior before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(b) The Purchaser shall have received on the Closing Date an opinion of Xxxxxx Godward LLP, counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Purchaser at the request of the following conditions, any of which may be waived in writing by the Purchasers:Company and shall so state therein.
(ic) The representations All corporate and warranties made other proceedings in connection with the transactions contemplated at the Closing hereby, and all documents and instruments incident to such transactions, shall be reasonably satisfactory in substance to the Purchaser and its counsel.
(d) No stockholder of the Company shall have any right (which has not been effectively waived) to require the Company to register the sale of any shares owned by such stockholder under the Securities Act in the Registration Statement (as defined in Section 8(a)) to be filed by the Company in Section 3.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 Purchaser pursuant to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a8(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Purchase Agreement (Cerus Corp)
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase the Shares and Warrants at the Closing Securities is subject to the fulfillment to the Purchasers’ reasonable prior satisfaction, on or prior to waiver in writing by the Closing DatePurchaser, of all of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by of the Company contained in Section 3.1 hereof Article IV shall be true in all material respects as of the Closing Date as though made at and correct except where as of the failure to be so true and correct does not have a Material Adverse Effect. Closing Date.
(b) The Company shall have performed performed, in all material respects respects, all covenants, agreements and obligations and conditions herein required to be performed or observed by it on or prior to the Closing DateDate pursuant to this Agreement.
(iic) A Credit Agreement in the form attached hereto as Exhibit A (the "Credit Agreement"), a Warrant Agreement in the form attached hereto as Exhibit B (the "Warrant Agreement"), a Security Agreement in the form attached hereto as Exhibit C (the "Security Agreement"), a Registration Rights Agreement in the form attached hereto as Exhibit D (the "Registration Rights Agreement") and an Amended and Restated Ophthalmology Development & License Agreement in the form attached hereto as Exhibit E (the "Amending Agreement") shall have been duly executed and delivered by the parties thereto.
(d) The Purchaser shall have received the opinion of Nida & Xxxxxxx PC in the form attached hereto as Exhibit F.
(e) On or prior to the Closing Date, the Company shall tender to the Purchaser certificate(s) representing the Securities.
(f) The Company and the Purchaser shall have obtained in a timely fashion any and all material consentsnecessary authorizations, permits, approvals, registrations and waivers consents or approvals or other orders or actions necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby by this Agreement, and the Company and the Purchaser shall have made all necessary filings with any court, administrative agency, or in other governmental or regulatory body or authority required for the other Transaction Documentsexecution and delivery by the Company and the Purchaser of this Agreement or the Company's and the Purchaser's consummation of the transactions contemplated hereby.
(ivg) The Company No action, suit, proceeding or investigation by or before any court, administrative agency or other governmental authority shall have delivered a Certificatebeen instituted or threatened which may restrain, executed on behalf prohibit or invalidate any 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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 CompanyAgreement.
(vih) The Prospectus waiting period (including any extension thereof) applicable to the Purchaser's acquisition of the Securities pursuant to this Agreement under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, shall have expired or been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; terminated, and the Purchaser shall have received evidence thereof satisfactory to the Prospectus in accordance with the federal securities lawsPurchaser.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Equity Investment Agreement (Miravant Medical Technologies)
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser hereunder to purchase the Funded Shares and Warrants at the Closing is subject to the fulfillment to satisfaction (or waiver by the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, Purchaser) of each of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by of the Company Corporation in Section 3.1 hereof shall be true and correct except where as of the failure date of this Agreement and as of the Closing Date, as though made on and as of such date, and the Corporation shall have complied with all its agreements contained herein and the Corporation shall have performed, satisfied and complied with all covenants, agreements and conditions required by this Agreement, the schedules and exhibits attached hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder (collectively, the “Transaction Documents”) to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed performed, satisfied or observed complied with by it on at or prior to the Closing, and the Corporation shall have furnished to the Purchaser a certificate, dated the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) The Company shall have delivered a Certificateapplicable, executed on behalf of the Company Corporation by each of its Chief Executive Officer or its and Chief Financial Officer, certifying as to the foregoing.
(b) The Corporation shall have furnished to the Purchaser a certificate, dated as of the Closing Date, certifying to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company Corporation by each of its SecretaryChief Executive Officer and Chief Financial Officer, dated certifying that such officers have examined the Financial Statements (as defined in
Section 3.1 (e) hereof) and, in their opinion (except to the extent superseded by statements in later-prepared documents comprising part of the Financial Statements and delivered to the Purchaser), as of such date, the Financial Statements do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, with respect to the respective periods covered by such Financial Statements.
(c) From the date hereof to the Closing Date, certifying there shall not have occurred any event or series of events, change, occurrence or development or a state of circumstances or facts (including any events, changes, occurrences, developments, state of circumstances or facts existing prior to the resolutions adopted by date hereof but which become known during such period) that, individually or in the Board aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect (for purposes of Directors this Agreement, “Material Adverse Effect” means a material adverse effect on (i) the business, results of operation or financial condition of the Company approving Corporation and its Subsidiaries taken as a whole; provided, however, that the term Material Adverse Effect shall not for purposes of this clause (i) be deemed to include the effects of (A) changes after the date of this Agreement (the “Signing Date”) in general business, economic or market conditions (including changes generally in prevailing interest rates, credit availability and liquidity, currency exchange rates and price levels or trading volumes in the United States or foreign securities or credit markets), or any outbreak or escalation of hostilities, declared or undeclared acts of war or terrorism, in each case generally affecting the industries in which the Corporation and its Subsidiaries operate, (B) changes or proposed changes after the Signing Date in generally accepted accounting principles in the United States (“GAAP”) or regulatory accounting requirements, or authoritative interpretations thereof, or (C) changes or proposed changes after the Signing Date in securities, banking and other laws of general applicability or related policies or interpretations of Governmental Authorities (in the case of each of these clauses (A), (B) and (C), other than changes or occurrences to the extent that such changes or occurrences have or would reasonably be expected to have a materially disproportionate adverse effect on the Corporation and its Subsidiaries taken as a whole relative to comparable U.S. banking or financial services organizations); or (ii) the ability of the Corporation to consummate the transactions contemplated by this Agreement hereby and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents perform its obligations hereunder on behalf of the Companya timely basis.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase consummate the Shares and Warrants at the Closing transactions contemplated by this Agreement is subject to the fulfillment to satisfaction of the Purchasers’ reasonable satisfaction, on or prior to following conditions as of the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by the Company set forth in Section 3.1 Article V and Article VI hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects at and as of the Closing Date as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties (without taking into account any disclosures made by the Company or the Sellers to the Purchaser pursuant to Sections 4.1(g), 5.24 and 6.5 hereof);
(b) The Company and each Seller shall have performed and complied with all obligations of the covenants and conditions herein agreements required to be performed or observed by it each of them under this Agreement on or prior to the Closing;
(c) All consents by third parties that are required for the transfer of the Acquired Stock to the Purchaser, and the consummation of the other transactions contemplated hereby or that are required in order to prevent a breach of, a default under, a termination or modification of, or any acceleration of, any obligations under any material contract to which the Company is a party shall have been obtained, all on terms reasonably satisfactory to the Purchaser;
(d) All governmental filings, authorizations and approvals that are required for the transfer of the Acquired Stock to the Purchaser and the consummation of the other transactions contemplated hereby shall have been duly made and obtained on terms reasonably satisfactory to the Purchaser;
(e) No action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable judgment, decree, injunction, order or ruling would prevent the performance of this Agreement or any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement, cause such transactions to be rescinded or materially and adversely affect the right of the Purchaser to own, operate or control the Company, and no judgment, decree, injunction, order or ruling shall have been entered which has any of the foregoing effects;
(f) Except as otherwise specified in writing by the Purchaser to the Representative, all of the Company's directors shall have resigned and such resignations shall be effective as of the Closing Date.;
(iij) The Payoff letters with respect to all of the Company's Indebtedness outstanding as of the Closing and releases of any and all Liens (including appropriate UCC termination statements) held by third parties against property of the Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrantsbeen obtained, all on terms reasonably satisfactory to the Purchaser;
(g) Xxxx Xxxxxxx and the Company shall have entered into an agreement relating to his employment with the Company (the "Employment Agreement"), substantially in the form of which Exhibit A attached hereto, and the Employment Agreement shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.;
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation Subject to the provisions of each this Agreement, the Purchaser reserves the right to withdraw or terminate this Agreement and not purchase the Shares and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfactionProperties, on or prior to the Closing Date, unless all of the following conditions, any of which may be conditions are satisfied or waived in writing by the PurchasersPurchaser:
(ia) The representations all government and warranties made regulatory approvals, orders, rulings, exemptions and consents (including, without limitation, those of any stock exchanges or other securities or regulatory authorities) which are necessary to be obtained by the Company Purchaser and the Vendors in Section 3.1 hereof shall be true and correct except where the failure order for each of them to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, consummate all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement will have been obtained on terms and conditions satisfactory to each of the Purchaser and the other Transaction Documents Vendors, acting reasonably, and will be in full force and effect;
(b) approval by the Exchange of the Acquisition as a "Qualifying Transaction", as defined in the Exchange Policies, including without limitation that the Acquisition satisfies all applicable Exchange Policies regarding Qualifying Transactions, including, without limitation, Policy 2.4;
(c) the approval of the Acquisition and this Agreement by the boards of directors of each of the Purchaser and the issuance Vendors will have been obtained on terms and conditions satisfactory to the Purchaser and the Vendors, acting reasonably;
(d) all requisite third party consents and provision of any necessary third party notices will have been obtained by the Purchaser on terms and conditions satisfactory to the Purchaser and the Vendors, acting reasonably;
(e) all requisite third party consents and provision of any necessary third party notices will have been obtained by the Vendors on terms and conditions satisfactory to the Purchaser and the Vendors, acting reasonably;
(f) no action, suit or proceeding regarding the Properties or against either of the Shares Purchaser or the Vendors will have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or by any private person (including, without limitation, any individual, body corporate, partnership, syndicate or other form of unincorporated entity) in Canada or elsewhere, whether or not having the force of law, and Warrantsno law, certifying regulation or policy will have been proposed, enacted, promulgated or applied, whether or not having the current versions force of law; that has the effect or may have the effect to cease trade, enjoin, prohibit or impose material limitations, damages or conditions on the consummation of all of the Certificate of Incorporation and Bylaws transactions contemplated by this Agreement;
(g) there will not exist any prohibition at law against either the Purchaser or the Vendors completing the Acquisition;
(h) the Purchaser will have determined in its sole judgment, acting reasonably, that no Material Adverse Change in the condition of the Company Properties during the time between the execution of this Agreement and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company.Closing Date has occurred;
(vii) the Purchaser will have determined in its sole judgment, acting reasonably, that a due diligence investigation by the Purchaser, has been satisfactorily_ completed;
(j) the Private Placement will have closed;
(k) The Prospectus royalty agreement referred to in Section 2.3(a) of this Agreement shall have been filed with entered into by the Commission pursuant Purchaser and Almaden;
(1) the Purchaser will have determined in its sole judgment, acting reasonably, that: (i) the Vendors will not have breached, or failed to Rule 424(bcomply with, in any material respect, any of their covenants or other obligations under this Agreement; and (ii) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness all representations and Warranties of the Registration Statement or any part thereof shall Vendors contained in this Agreement will have been issued true and no proceeding for correct, in all material respects, as of the date of this Agreement and will not cease to be true and correct in any material respect thereafter provided that purpose shall the Vendors have been initiated given notice of and five (5) Business Days to cure any such misrepresentation, breach or threatened by the Commission; no stop order non-performance and has failed to cure any such misrepresentation, breach or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.non-performance;
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation obligations of each the Purchaser hereunder required to purchase the Shares and Warrants be performed at the Closing is subject shall be subject, at its election, to the fulfillment to satisfaction or waiver (which waiver, if so requested by the Purchasers’ reasonable satisfactionCompany, on shall be made in writing), at or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(ia) The representations and warranties made by of the Company in Section 3.1 hereof made herein shall be true and correct in all material respects (disregarding, for purposes of such determination of materiality, all qualifications in such representations and warranties regarding "material") as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except where that representations and warranties made herein that by their terms speak as of the failure to date of this Agreement or some other date shall be so true and correct does not have a Material Adverse Effect. only as of such date).
(b) The Company shall have performed in all material respects all obligations and conditions herein required agreements, and complied in all material respects with all covenants, contained in this Agreement, to be performed or observed and complied with by it on at or prior to the Closing Date.
(iic) The Each of the Company and KL shall have obtained in a timely fashion any executed and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation delivered each of the purchase and sale of the Shares and WarrantsDocuments, all of which shall be and remain so long as necessary in full force and effectapplicable.
(iiid) No judgmentAll documents, writinstruments, order, injunction, award or decree of or agreements and arrangements relating to the transactions contemplated by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authoritythe Documents shall be reasonably satisfactory to the Purchaser, shall have been issued, executed and delivered by the parties thereto and no action or proceeding party to any of the foregoing (other than the Purchaser) shall have been instituted by breached any governmental authority, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documentsits material obligations thereunder.
(ive) The Company Since December 31, 1999, no change, occurrence or development shall have delivered a Certificateoccurred, executed on behalf of the Company by its Chief Executive Officer been threatened or its Chief Financial Officer, dated as of the Closing Date, certifying become known to the fulfillment of Purchaser that could reasonably be expected to have a Material Adverse Effect on the conditions specified in subsections business, operations, prospects, properties or condition (i), (ii), (iiifinancial or other) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying its Subsidiary, taken as a whole, which, in the reasonable judgment of the Purchaser, is or may be materially adverse to the signatures Company and authority its Subsidiary, taken as a whole, and (ii) the Purchaser shall not have become aware of persons signing any information or other matter relating to the Transaction Documents Company (x) of which the Company (but not the Purchaser) had knowledge on or prior to the date of this Agreement, (y) that, in the Purchaser's reasonable judgement, is inconsistent with any information or other matter relating to the Company disclosed to the Purchaser by the Company or any of its representatives prior to the date of this Agreement, and related documents on behalf (z) would have been viewed by the Purchaser, in its reasonable judgment, as having materially and adversely altered the total mix of information made available to the Purchaser prior to the date of this Agreement. For purposes of this Section 7.2(e), the Company shall be deemed to have "knowledge" of a particular fact or other matter if (I) any individual who is serving, or who has at any time served, as a director, officer or management-level employee of the CompanyCompany is actually aware of such fact or other matter; or (II) a prudent individual serving as a director, officer or management-level employee of the Company could be expected to discover or otherwise become aware of such fact or other matter in the diligent exercise of his or her duties in such capacity.
(vif) The Prospectus Since December 31, 1999, the business of the Company shall have been filed operated in compliance with all Applicable Laws, except where the Commission pursuant failure to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall do so could not reasonably be expected to have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion a Material Adverse Effect on the Nasdaq Capital Market Company and listed and admitted and authorized for trading on the Nasdaq Capital Marketits Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Preferred Stock Exchange and Purchase Agreement (Us Search Corp Com)
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase the Shares and Warrants Securities at the Closing is subject to the fulfillment to the Purchasers’ reasonable Purchaser's satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:Purchaser.
(ia) The representations and warranties made by the Company in Section 3.1 3 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except where to the failure to extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be so true and correct does as of such earlier date, and, the representations and warranties made by the Company in Section 3 hereof not have a Material Adverse Effectqualified as to materiality shall be true and correct in all material respects 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 in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
(iib) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations registrations, and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and WarrantsSecurities, all of which shall be and remain so long as necessary in full force and effect.
(iiic) The Company shall have executed and delivered the Registration Rights Agreement.
(d) The Company shall have entered into the agreements superseding the Executive Employment Agreements of February 11, 2005, with James R. Spencer, Scott A. Maxxxxxx, xxx Xxxxin X. Xxxxxxxxx xxxxxxxx xxxxxx xx Exhibit C.
(e) The Company shall have entered into the agreements with certain Affiliates of Purchaser restructuring debt owed by the Company to those Affiliates attached hereto at Exhibit D.
(f) The Company shall have entered into cost-containment measures reasonably satisfactory to Purchaser.
(g) No judgment, writ, order, injunction, award award, or decree of or by any court, court or judge, justice 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(ivh) The Company shall have delivered a Certificatecertificate, executed on behalf of the Company by its Chief Executive Officer chief executive officer or its Chief Financial Officerchief financial officer, dated as of the Closing Date, certifying to the fulfillment of the conditions specified in subsections (ia), (iib), (iii) and(viid), (e), (f), (g), and (j) of this Section 2.2(a)5.01.
(vi) The Company shall have delivered a Certificatecertificate, executed on behalf of the Company by its Secretaryauthorized officer, dated as of the Closing Date, certifying the resolutions adopted by the Board Company's board of Directors of the Company directors approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and WarrantsSecurities, certifying the current versions of the Certificate Company's certificate of Incorporation incorporation and Bylaws of the Company bylaws and certifying as to the signatures and authority of persons Persons signing the Transaction Documents and related documents on behalf of the Company.
(vij) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no No stop order or suspension of trading shall have been imposed by the National Association of Securities Dealers, Inc., the SEC, or any Person other governmental regulatory body with respect to public trading in the Common Stock; and the Purchaser common stock.
(k) The Company shall have received caused to be delivered to the Prospectus Company irrevocable proxies from stockholders owning of record not less than 50% of the issued and outstanding stock of the Company appointing Purchaser as the proxy and attorney-in-fact of such stockholders to approve the proposed increase in the authorized capitalization of the Company in accordance with the federal securities lawsthis Agreement.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation obligations of each the Purchaser to purchase and pay for the Shares and Warrants at on the Closing is Date are subject to the fulfillment following conditions:
(a) The Purchaser shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the Purchasers’ reasonable satisfaction, effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or prior before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(b) The Purchaser shall have received on the Closing Date an opinion of Xxxxxx Godward llp, counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Purchaser at the request of the following conditions, any of which may be waived in writing by the Purchasers:Company and shall so state therein.
(ic) The representations All corporate and warranties made other proceedings in connection with the transactions contemplated at the Closing hereby, and all documents and instruments incident to such transactions, shall be reasonably satisfactory in substance to the Purchaser and its counsel.
(d) No stockholder of the Company shall have any right (which has not been effectively waived) to require the Company to register the sale of any shares owned by such stockholder under the Securities Act in the Registration Statement (as defined in Section 8(a)) to be filed by the Company in Section 3.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 Purchaser pursuant to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a8(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Purchase Agreement (Cerus Corp)
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser Purchaser's obligations to purchase the Purchased Shares and Warrants to take the other actions required to be taken by it at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on at or prior to the Closing DateClosing, of each of the following conditions, conditions (any of which may be waived in writing by the Purchasers:Purchaser, in whole or in part):
(ia) The representations and warranties made by of the Company contained in Section 3.1 hereof this Agreement shall be true on and correct as of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing Date, except where to the failure extent any such representations and warranties are stated to be so made as of a specific date, in which case they shall be true as of such date, except in each case for any inaccuracies in such representations and correct does warranties as would not have a Material Adverse Effectmaterial adverse effect on the Company. The In addition, the Company shall have performed in all material respects all obligations and conditions herein required pursuant to the terms of this Agreement to be performed or observed by it on or prior to the Closing DateClosing.
(iib) On the Closing Date, the sale and issuance of the Purchased Shares shall be legally permitted by all laws and regulations to which the Purchaser and the Company are subject.
(c) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations waivers and waivers approvals necessary or appropriate for consummation of the purchase and sale of transactions contemplated hereby (except for such as may be properly obtained subsequent to the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effectClosing).
(iiid) No judgmentThere shall be no injunction, writ, order, injunction, award preliminary restraining order or decree other order in effect of or any nature issued by any court, or judge, justice or magistrate, including any bankruptcy a court or judge, or any order governmental agency of or by any governmental authority, shall have been issued, and no competent jurisdiction directing that the transactions contemplated hereby not be consummated in the manner provided for in this Agreement. No action or proceeding shall have been instituted by and remain pending before a court or other governmental body of competent jurisdiction to restrain, prohibit or otherwise challenge any governmental authority, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby (or in seeking material damages from the Purchaser or the Company as a result thereof), other Transaction Documentsthan any such action or proceeding which would not have a material adverse effect on the Company or prevent the Company or the Purchaser from performing their respective obligations hereunder.
(ive) The IPO shall have closed.
(f) The Company shall have delivered to the Purchaser a Certificatecertificate, 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf an executive officer of the Company.
(vi, dated the date of the Closing, setting forth the Company's representation that the conditions in Section 4.1(a) The Prospectus above shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities lawssatisfied.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Stock Purchase and Master Strategic Relationship Agreement (Saba Software Inc)
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase consummate the Shares and Warrants at the Closing transactions contemplated by this Agreement is subject to the fulfillment satisfaction of the following conditions as of the Closing Date:
(a) The representations and warranties set forth in Article V and Article VI hereof shall be true and correct in all material respects at and as of the Closing Date as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties (without taking into account any disclosures made by the Company or the Seller to the Purchasers’ reasonable satisfactionPurchaser pursuant to Sections 4.1(g), 5.24 and 6.6 hereof);
(b) The Company and the Seller shall have performed and complied with all of the covenants and agreements required to be performed by each of them under this Agreement on or prior to the Closing;
(c) All consents by third parties that are required for the transfer of the Acquired Stock to the Purchaser, and the consummation of the other transactions contemplated hereby or that are required in order to prevent a breach of, a default under, a termination or modification of, or any acceleration of, any obligations under any material contract to which the Company is a party shall have been obtained, and payoff letters with respect to all of the Company's Indebtedness outstanding as of the Closing and releases of any and all Liens held by third parties against property of the Company shall have been obtained, all on terms reasonably satisfactory to the Purchaser;
(d) All governmental filings, authorizations and approvals that are required for the transfer of the Acquired Stock to the Purchaser and the consummation of the oth er transactions contemplated hereby shall have been duly made and obtained on terms reasonably satisfactory to the Purchaser;
(e) No action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable judgment, decree, injunction, order or ruling would prevent the performance of this Agreement or any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement, cause such transactions to be rescinded or materially and adversely affect the right of the Purchaser to own, operate or control the Company, and no judgment, decree, injunction, order or ruling shall have been entered which has any of the foregoing effects;
(f) Except as otherwise specified in writing by the Purchaser to the Seller, all of the Company's directors shall have resigned and such resignations shall be effective as of the Closing Date;
(g) Xxxxxx Xxxxxx and the Company shall have entered into an agreement relating to his employment with the Company (the "Employment Agreement"), substantially in the form of Exhibit B attached hereto, and the Employment Agreement shall be in full force and effect;
(h) Xxxxxx Xxxxxx and the Company shall have entered into an agreement relating to finder's fees for the possible acquisitions of West Georgia Aerials and/or Xxxxxx Rental by the Company (the "Finder's Fee Agreement"), substantially in the form of Exhibit C attached hereto, and the Finder's Fee Agreement shall be in full force and effect;
(i) Xxxxxx Xxxxxx and the Company shall have entered into an agreement relating to restrictions on transfer of the NES Common Stock (the "Stock Transfer Agreement"), substantially in the form of Exhibit D attached hereto, and the Stock Transfer Agreement shall be in full force and effect;
(j) Purchaser shall have received an opinion, dated the Closing Date, of Xxxxxx, Xxxxxxxx & Xxxx, counsel to the Company and the Seller, substantially in the form of Exhibit E attached hereto;
(k) On or prior to the Closing Date, the Seller shall have delivered to Purchaser all of the following conditions, any of which may be waived in writing by the Purchasersfollowing:
(i) The representations and warranties made by a certificate from the Company and the Seller in Section 3.1 hereof shall be true and correct except where a form reasonably satisfactory to the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to Purchaser, dated the Closing Date., stating that the preconditions specified in Sections 3.1(a) through (i) have been satisfied;
(ii) The Company shall have obtained in a timely fashion any copies of all third party and all material governmental consents, permits, approvals, registrations filings, releases and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary terminations required in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing connection with the consummation of the transactions contemplated hereby or in the other Transaction Documents.herein;
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf certified copies of the Company by its Secretary, dated as resolutions of the Closing Date, certifying the resolutions adopted by the Board Company's board of Directors of the Company directors approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance Agreement;
(iv) certificates of the Shares and Warrants, certifying the current versions secretary of state of the Certificate State of Incorporation Georgia and Bylaws each state where the Company is qualified to do business providing that the Company is in good standing;
(v) copies 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.resignations described in Section 3.1(f);
(vi) The Prospectus shall have been filed with all documents and records relating to the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness business of the Registration Statement or any part thereof shall have been issued and no proceeding for Company that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading are in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.Seller's possession;
(vii) The landlord consents and estoppel certificates from the Company’s Common Stock 's landlords in form and substance satisfactory to the Purchaser; and
(including viii) such other documents or instruments as the Shares Purchaser may reasonably request to effect the transactions contemplated hereby;
(l) Purchaser shall have obtained on terms and conditions satisfactory to it all of the debt and equity financing required in order to consummate the transactions contemplated hereby, and to fund the working capital requirements of the Company after the Closing; and
(m) All proceedings to be taken by the Company and the Warrant Shares) Seller in connection with the consummation of the Closing Transactions and the other transactions contemplated hereby and all certificates, opinions, instruments and other documents required to be delivered by the Company and the Seller to effect the transactions contemplated hereby reasonably requested by the Purchaser shall be eligible for inclusion on reasonably satisfactory in form and substance to the Nasdaq Capital Market and listed and admitted and authorized for trading on Purchaser. Any condition specified in this Section 3.1 may be waived by the Nasdaq Capital MarketPurchaser; provided that no such waiver shall be effective unless it is set forth in a writing executed by the Purchaser.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser to purchase the Shares and Warrants Securities at the Closing is subject to the fulfillment to the Purchasers’ reasonable Purchaser's satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:Purchaser.
(ia) The representations and warranties made by the Company in Section 3.1 3 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except where to the failure to extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be so true and correct does as of such earlier date, and, the representations and warranties made by the Company in Section 3 hereof not have a Material Adverse Effectqualified as to materiality shall be true and correct in all material respects 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 in all material respects as of such earlier date. The Company shall have Revised and Restated 4/18/2006 14 Effective as of 12/12/05 performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
(iib) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations registrations, and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and WarrantsSecurities, all of which shall be and remain so long as necessary in full force and effect.
(iiic) The Company shall have executed and delivered the Registration Rights Agreement.
(d) The Company shall have entered into the agreements superseding the Executive Employment Agreements of February 11, 2005, with James R. Spencer, Sxxxx X. Xxxxxxxx, xxx Xxxxxx X. Xxxmussen xxxxxxxx hereto at Exhibit C.
(e) The Company shall have entered into the agreements with certain Affiliates of Purchaser restructuring debt owed by the Company to those Affiliates attached hereto at Exhibit D.
(f) The Company shall have entered into cost-containment measures reasonably satisfactory to Purchaser.
(g) No judgment, writ, order, injunction, award award, or decree of or by any court, court or judge, justice 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(ivh) The Company shall have delivered a Certificatecertificate, executed on behalf of the Company by its Chief Executive Officer chief executive officer or its Chief Financial Officerchief financial officer, dated as of the Closing Date, certifying to the fulfillment of the conditions specified in subsections (ia), (iib), (iii) and(viid), (e), (f), (g), and (j) of this Section 2.2(a)5.01.
(vi) The Company shall have delivered a Certificatecertificate, executed on behalf of the Company by its Secretaryauthorized officer, dated as of the Closing Date, certifying the resolutions adopted by the Board Company's board of Directors of the Company directors approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and WarrantsSecurities, certifying the current versions of the Certificate Company's certificate of Incorporation incorporation and Bylaws of the Company bylaws and certifying as to the signatures and authority of persons Persons signing the Transaction Documents and related documents on behalf of the Company.
(vij) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no No stop order or suspension of trading shall have been imposed by the National Association of Securities Dealers, Inc., the SEC, or any Person other governmental regulatory body with respect to public trading in the Common Stock; and the Purchaser common stock.
(k) The Company shall have received caused to be delivered to the Prospectus Company irrevocable proxies from stockholders, that combined with stock owned by affiliates of the Purchaser, own of record not less than 50% of the issued and outstanding stock of the Company, appointing Purchaser as the proxy and attorney-in-fact of such stockholders to approve the proposed increase in the authorized capitalization of the Company in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares this Agreement. Revised and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.Restated 4/18/2006 15 Effective as of 12/12/05
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation respective obligations of each Purchaser pursuant to purchase the Shares and Warrants at Section 2.2 in connection with the Closing is are subject to the fulfillment satisfaction, or waiver in accordance with this Agreement, of the following conditions on or before the Closing Date, both before and after giving effect to the Purchasers’ reasonable satisfactionClosing:
(i) the representations and warranties of the Company contained in this Agreement shall be true and correct as of the Closing Date (unless expressly made as of an earlier date herein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements required to be performed by the Company or any on or prior to the Closing Date, of Date pursuant to this Agreement (other than the following conditions, any of which may obligations set forth in Section 2.3 to be waived in writing by performed at the Purchasers:Closing) shall have been performed;
(iiii) The representations and warranties made the delivery by the Company in Section 3.1 hereof shall be true and correct except where of the failure to be so true and correct does not have a Material Adverse Effect. The items the Company shall have performed in all material respects all obligations and conditions herein is required to be performed or observed by it deliver on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.Date pursuant to Section 2.3(a);
(iv) The the Company shall have delivered a Certificatefiled with the State of Nevada, executed on behalf and the State of Nevada shall have provided evidence of acceptance of, the Series V Certificate of Designation;
(v) there shall be no breach of any obligation, covenant or agreement of the Company by its Chief Executive Officer under this Agreement and no existing event which, with the passage of time or its Chief Financial Officerthe giving of notice, dated as of would constitute such a breach;
(vi) no Material Adverse Effect shall have occurred from the date hereof through the Closing Date;
(vii) from the date hereof through the Closing Date, certifying trading in the shares of Common Stock shall not have been suspended by the Commission or the Company’s principal Trading Market and, at any time prior to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the Board United States or New York State authorities nor shall there have occurred any material outbreak or escalation of Directors hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, and without regard to any factors unique to such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing;
(viii) the Company meets the current public information requirements under Rule 144 in respect of the Company approving the transactions contemplated by this Agreement and the Securities; and
(ix) any other Transaction Documents and the issuance conditions contained herein, including delivery of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws of items that the Company and certifying as is required to deliver on or prior to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company.
(vi) The Prospectus shall have been filed with the Commission Closing Date pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities lawsSection 2.3.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Securities Purchase Agreement (Unrivaled Brands, Inc.)
Conditions to the Purchaser’s Obligations. The obligation obligations of each the Purchaser to purchase the Shares and Warrants at the Closing is hereunder are subject to the fulfillment accuracy, when made and on the Closing Date, of the representations and warranties of the Company, the Trust and the Sellers contained herein, to the Purchasers’ reasonable satisfactionperformance in all material respects by the Company, the Trust and the Sellers of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Purchaser shall not have discovered and disclosed to the Company, the Trust and the Sellers on or prior to the Closing Date that the Offering Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Purchaser, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Indenture, the Junior Subordinated Debentures, the Guarantee Agreement, the Capital Securities, the Common Securities, the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all respects to counsel for the Purchaser, and the Company, the Trust and the Sellers shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxxxx, XxXxxxxxx & Fish, LLP shall have furnished to the Purchaser their written opinion, as counsel to the Company and the Trust, addressed to the Purchaser and dated the Closing Date, in form and substance satisfactory to the Purchaser, to the effect set forth in Exhibit A hereto.
(d) Xxxxxxxx, Xxxxxx & Finger shall have furnished to the Purchaser their written opinion, on certain matters of Delaware law relating to the organization of the Trust and the validity of the Capital Securities, addressed to the Purchaser and dated the Closing Date, in form and substance satisfactory to the Purchaser, to the effect set forth in Exhibit B hereto and to such further effect as counsel to the Purchaser may reasonably request.
(e) You shall have received (A) the Consent of Independent Auditors dated the date of the Offering Memorandum, in form and substance satisfactory to you, from KPMG Peat Marwick LLP, independent auditors for Eldorado Bancorp and (B) letters, dated the date hereof and the Closing Date in form and substance satisfactory to you, from Price Waterhouse LLP, independent auditors for the Company, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to (i) the financial statements and (ii) certain financial information (as of a date after, or for a period beginning on or after, January 1, 1996), in each case contained or incorporated by reference in the Offering Memorandum as identified by you.
(f) The Company and the Trust shall have furnished to the Purchaser a certificate, dated the Closing Date, of the following conditions, any President and Chief Executive Officer of which may be waived in writing by the PurchasersCompany and its chief financial officer stating that:
(i) The representations representations, warranties and warranties made by agreements of the Company and the Trust in Section 3.1 hereof shall be 1 are true and correct except where as of the failure to be so true Closing Date and correct does not have a Material Adverse Effect. The the Company shall have performed has complied in all material respects with all obligations its agreements contained herein; and
(ii) They have carefully examined the Offering Memorandum and, in their opinion the Offering Memorandum, as of its date and conditions as of the Closing Date, did not include any untrue statement of a material fact and did not omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) Each Seller shall have furnished to the Purchaser on the Closing Date a certificate, dated such Closing Date, signed by an authorized senior officer of such Seller, stating that the representations and warranties of such Seller contained herein required are true and correct as of such Closing Date and that such Seller has complied in all material respects with all agreements contained herein to be performed by such Seller at or observed prior to such Closing Date.
(h) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market shall have been suspended or minimum prices shall have been established on any such exchange or such market by it the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or New York or California state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Purchaser, impracticable or inadvisable to proceed with the offering or delivery of the Capital Securities on the terms and in the manner contemplated in the Offering Memorandum.
(i) The Purchaser shall have received on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of Date the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) No judgment, writ, order, injunction, award or decree of or Registration Rights Agreement executed 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) 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 (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation 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 CompanyTrust.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Conditions to the Purchaser’s Obligations. The obligation of each Purchaser to purchase the Shares and the Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable such Purchaser's satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:such Purchaser (as to itself only):
(i) The representations and warranties made by the Company in Section 3.1 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except where to the failure to extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be so true and correct does as of such earlier date, and, the representations and warranties made by the Company in Section 3 hereof not have a Material Adverse Effectqualified as to materiality shall be true and correct in all material respects 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 in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and conditions covenants herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares Securities and Warrantsthe consummation of the other transactions contemplated by the Transaction Documents, all of which shall be and remain so long as necessary in full force and effect.
(iii) The Company shall have executed and delivered the Registration Rights Agreement.
(iv) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(ivv) 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 (i), (ii), (iiiiv) and(viiand (viii) of this Section 2.2(a2.3(a).
(vvi) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and WarrantsSecurities, certifying the current versions of the Certificate of Incorporation 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.
(vivii) The Prospectus Purchasers shall have been filed with received an opinion from Ellenoff, Xxxxxxxx & Schole LLP, the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness Company's counsel, dated as of the Registration Statement or any part thereof shall have been issued Closing Date, in form and no proceeding for that purpose shall have been initiated or threatened by substance reasonably acceptable to the Commission; no Purchasers and addressing such legal matters as the Purchasers may reasonably request.
(viii) No stop order or suspension of trading shall have been imposed by Nasdaq, the SEC or any Person other governmental or regulatory body with respect to public trading in the Common Stock; and the .
(ix) The Purchaser shall have received a certificate evidencing the Prospectus number of Shares equal to such Purchaser’s Subscription Amount divided by the Per Share Purchase Price, registered in accordance with the federal securities lawsname of such Purchaser.
(viix) The Company’s Purchaser shall have received a Warrant, registered in the name of such Purchaser, pursuant to which such Purchaser shall have the right to acquire up to the number of shares of Common Stock (including equal to 50% of the Shares and to be issued to such Purchaser at the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital MarketClosing.
Appears in 1 contract
Samples: Securities Purchase Agreement (Hudson Holding Corp)
Conditions to the Purchaser’s Obligations. The obligation of each the Purchaser hereunder to exchange the Note for the Exchange Shares and to purchase the Purchase Shares and Warrants at the Closing hereunder is subject to the fulfillment satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Purchaser's sole benefit and may be waived by the Purchaser at any time in the Purchaser's sole discretion:
a. The Company shall have executed the signature page to this Agreement and the Registration Rights Agreement, and delivered such pages to the Purchasers’ reasonable satisfactionPurchaser.
b. The Company shall have delivered to the Purchaser (i) the duly executed certificates representing the Exchange Shares and (ii) the duly executed certificates representing the Purchase Shares, all in accordance with Section 1(a).
c. The Articles of Amendment shall have been accepted for filing with the Secretary of State of the State of North Carolina and a copy thereof certified by such official shall have been delivered to the Purchaser.
d. The Common Stock shall be authorized for quotation on NASDAQ and trading in the Common Stock (or NASDAQ generally) shall not have been suspended by the SEC or NASDAQ.
e. The representations and warranties of the Company shall be true and correct as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which representations and warranties shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Purchaser shall have received a certificate, of the following conditions, any of which may be waived in writing executed by the Purchasers:
(i) The representations and warranties made by the Company in Section 3.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) 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, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) The Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer or its Chief Financial Officerof the Company, dated as of the Closing Date, certifying to the fulfillment foregoing effect, and as to such other matters as may be reasonably requested by the Purchaser.
f. No statute, rule, regulation, executive order, decree, ruling, injunction, action or proceeding shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which questions the validity of, or challenges or prohibits the consummation of, any of the conditions specified in subsections (i), (ii), (iii) and(vii) of transactions contemplated by this Section 2.2(a)Agreement.
(v) g. The Company Purchaser shall have delivered a Certificate, executed on behalf received an opinion of the Company by its SecretaryCompany's counsel, dated as of the Closing Date, certifying in form, scope and substance reasonably satisfactory to the resolutions adopted by Purchaser and in substantially the Board form of Directors Exhibit C attached hereto (which opinion shall state that the holding period of the Company approving Exchange Shares and related Conversion Shares will "tack" with the transactions contemplated by this Agreement and the other Transaction Documents and the issuance holding period of the Shares and Warrants, certifying the current versions Note for purposes of the Certificate of Incorporation 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.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b144(d) under the Securities Act within Act).
h. The Irrevocable Transfer Agent Instructions, in the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof form attached hereto as Exhibit D, shall have been issued delivered to and no proceeding for that purpose acknowledged in writing by the Company's transfer agent and a copy of such instructions and acknowledgment shall have been initiated delivered to the Purchaser.
i. No material adverse change or threatened development in the business, operations, properties, prospects, financial condition, or results of operations of the Company shall have occurred since the date hereof.
j. The Company shall have delivered to the Purchaser the Waiver(s) in form and substance satisfactory to the Purchaser, duly executed by Xxxxx X. Xxxxxxx, the trustee of certain trusts for Xx. Xxxxxxx'x children, and Vertical Financial Holdings.
k. The Company shall have satisfied all conditions to the continued listing of the Common Stock on NASDAQ as set forth in the letter, dated October 11, 1999, from NASDAQ to the Company and shall not have received notice from NASDAQ that the Company must satisfy any additional requirements (other than normal maintenance requirements applicable to all listed companies) to maintain such listing.
l. Prior to or simultaneously with the Closing, Vertical Financial Holdings (together with any designee of Vertical Financial Holdings) shall collectively have purchased from the Company 1,100,000 shares of Common Stock and paid to the Company an aggregate purchase price of at least $1,100,000 for such shares of Common Stock.
m. Prior to or simultaneously with the closing, Xxxx X. Xxxxxxx shall have arranged to the satisfaction of the Purchaser for (x) all debt and other obligations (including any refinancing thereof) in the amount of $1,000,000 (the "OBLIGATIONS") owed by the Commission; no stop order or suspension Company to any bank, including, without limitation to Branch Banking &Trust Company, described in the September SB-2 as of trading the date the September SB-2 was declared effective to have been fully satisfied (other than by the Company) and/or (y) the Company to have been unconditionally released from the Obligations, and in return for such arrangement the Company shall have been imposed by any Person issued to Xxxx X. Xxxxxxx no more than 1,000,000 shares of Common Stock and the Company shall have paid no other consideration in connection with respect to public trading such arrangement.
n. The Company shall have taken all actions necessary or desirable, in the Common Stock; and opinion of the Purchaser, to amend or supplement the September SB-2 so that sales of all the remaining Registrable Securities (as defined in the January Registration Rights Agreement) are permitted to be made by the Purchaser shall have received pursuant to the Prospectus September SB-2 in accordance with such amounts and at such times as the federal securities lawsPurchaser may determine.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Appears in 1 contract
Samples: Securities Purchase and Exchange Agreement (Interactive Magic Inc /Nc/)
