First Closing Deliveries. (a) At the First Closing, the Borrower shall deliver or cause to be delivered to each Lender the following, appropriately dated (the "BORROWER FIRST CLOSING DELIVERABLES"):
(i) a Note, in the aggregate principal amount of the First Closing Purchase Price indicated opposite such Lender's name on Schedule A registered in the name of such Lender;
(ii) a Warrant, duly executed by the Borrower and registered in the name of such Lender, pursuant to which such Lender shall have the right to acquire the number of shares of Common Stock indicated opposite such Lender's name on Schedule A under the heading "First Closing - Warrant Shares";
(iii) the Registration Rights Agreement, duly executed by the Borrower;
(iv) a letter agreement, duly executed by Xxxxx Xxxx, Chief Executive Officer of the Borrower, in his individual capacity, and accepted and agreed to by the Borrower (as amended, supplemented or otherwise modified from time to time, the "SHAREHOLDER AGREEMENT");
(v) evidence of proper applications made to, and approvals received from, each Trading Market with respect to the trading of Underlying Securities thereon;
(vi) the legal opinion of Borrower Counsel, in agreed form, addressed to the Administrative Agent and such Lender;
(vii) an officer's certificate reasonably satisfactory to the Lenders from an officer of the Borrower that each of the conditions set forth in Section 6.1 hereof has been satisfied; and
(viii) any other document reasonably requested by the Administrative Agent or such Lender.
(b) At the First Closing, each Lender shall deliver or cause to be delivered to the Borrower the following:
(i) the First Closing Purchase Price, in United States dollars and in immediately available funds, by wire transfer to an account designated in writing by the Borrower for such purpose; and
(ii) the Registration Rights Agreement, duly executed by such Lender.
First Closing Deliveries. (a) At the First Closing, Borrower shall deliver to Lenders:
(i) the Sands Entity Note, the RS Properties Note and the AirWorks Note, each duly executed by Borrower;
(ii) the Voting Agreement, in substantially the form attached hereto as Exhibit A, duly executed by each of Dxxxxx Xxxxxx, Jxxxx XxXxxxxxx, Mxxxxx Xxxxx, Rxxxxxx Xxxxxx, Ixxx Krichtafovitch, Wxxxxxx Xxxxxx, Rxxxxxx Xxx and Fxxxxxxx Xxxxxxxxx (the “Voting Agreement”);
(iii) the Letter Agreements, in substantially the form attached hereto as Exhibit B, duly executed by each of Eagle Rock Group LLC, The Wall Street Group, Dxxxxx Xxxxxx, Rxxxxxx Xxxxxx, Ixxx Krichtafovitch, Kxxx Xxxxxxx, Vxxxxxxx Xxxxxxxx, Jxxxx Xxxxxx, Sxxxxx Xxxxxx, Vxxxxxxx Xxxxxxx, Txxxxxx Xxx, Mxxxxx Xxxxxxxxxx, Vladislov Korlov, Jxxxx XxXxxxxxx, Mxxxxx Xxxxx, Wxxxxxx Xxxxxx, J. Axxxxxxxx Xxxxxx, Rxxxxxx Xxx and Fxxxxxxx Xxxxxxxxx (collectively, the “Letter Agreements”)
(iv) the Registration Rights Agreement, in the form attached hereto as Exhibit C, duly executed by Borrower (the “Registration Rights Agreement”);
(v) the Security Agreement, in the form attached hereto as Exhibit D, duly executed by Borrower (the “Security Agreement”);
(vi) the Patent Security Agreement, in the form attached hereto as Exhibit E, duly executed by Borrower (the “Patent Security Agreement”);
(vii) Borrower Counsel Opinion and Nevada Opinion;
(viii) the Fairness Opinion;
(ix) Borrower Officer’s Certificate;
(x) a certificate by the Secretary of Borrower, dated as of the First Closing Date, as to (A) the good standing of Borrower in its jurisdiction of incorporation, (B) no amendments to Borrower’s charter documents between the date hereof and the First Closing Date that would adversely affect Borrower’s obligations under this Agreement were approved by the Board of Directors or shareholders or filed with the Secretary of State of the State of Nevada, (C) the effectiveness of resolutions of Borrower’s board of directors authorizing the execution, delivery and performance of this Agreement by Borrower passed in connection with this Agreement and the transactions contemplated hereby, and (D) the incumbency of such officer of Borrower executing this Agreement or any other document on behalf of Borrower;
(xi) confidentiality agreements, in such form as is acceptable to Lenders in their reasonable discretion, from each employee of Borrower;
(xii) such other documents as may be required under this Agreement or as a Lender or its counsel may reasonably r...
First Closing Deliveries. At the First Closing:
(a) The parties to the Transaction Agreements shall exchange duly executed signature pages to the Transaction Agreements remotely via facsimile, or by such other methods as mutually agreed by the parties thereto;
(b) The Investor shall pay US$42,000,000 by wire transfer of immediately available funds to the Closing Account or by such other payment methods as may be mutually agreed upon by the Company and the Investor; and
(c) The Company shall (i) deliver to the Investor, free and clear of any Encumbrance, a share certificate registered in its name or the name(s) of its nominee(s) as directed by the Investor, evidencing the number of Subscribed Shares subscribed by the Investor, (ii) enter the Investor in the register of members of the Company as a holder of the Subscribed Shares subscribed by it, free and clear of any Encumbrance, evidencing the Investor’s Subscribed Shares as having been issued and credited as fully paid, (iii) deliver to the Investor a certified true copy of the register of members of the Company reflecting the issuance of the Subscribed Shares subscribed by the Investor, and (iv) deliver to the Investor all other items required at the First Closing under Section 6.1.
First Closing Deliveries. The Purchaser shall have delivered to the Seller, at or prior to the First Closing Date, the following:
(a) an amount equal to the First Closing Purchase Price described in Section 2.7 hereof;
(b) an instrument of assignment and assumption relating to the Contracts substantially in the form attached hereto as Exhibit D;
(c) a good standing certificate, dated not earlier than twenty (20) days prior to the First Closing Date, of the Secretary of State of Delaware, as to the good standing of the Purchaser in Delaware, and a certificate of authorization, dated not earlier than twenty (20) days prior to the First Closing Date, of the Secretaries of State of North Carolina and South Carolina, as to the Purchaser’s authorization to transact business in North Carolina and South Carolina;
(d) resolutions, certified as of the First Closing Date by the Secretary or Assistant Secretary of the Purchaser, adopted by the Board of Directors of the Purchaser and authorizing the execution and delivery by the Purchaser of this Agreement and the other Transaction Documents, the performance by it of its obligations hereunder and thereunder and the consummation by it of the transactions contemplated hereby and thereby;
(e) such certificates of an officer of the Purchaser to evidence compliance with the conditions set forth in Sections 10.1, 10.2, 10.3, 10.6, 10.7, 10.8 and 10.9 hereof and any other certificates to evidence compliance with the conditions set forth in this Article X as may be reasonably requested by the Seller or their counsel;
First Closing Deliveries. The Seller and Carolina Petroleum shall have delivered to the Purchaser, at or prior to the First Closing Date, the following:
(a) the applicable instruments of Transfer referred to in Section 3.2 hereof;
(b) sales records (for 2004, 2005, 2006 and 2007 year-to-date, and weekly sales data for the fifty-two (52) weeks prior to the First Closing), current personnel records, and all underground storage tank and environmental reports and records, which are in Carolina Petroleum’s or Seller’s possession or possession of its current legal counsel;
(c) a certificate of good standing for the Seller and Carolina Petroleum, dated not earlier than twenty (20) days prior to the First Closing Date, of each of (i) the Secretaries of State of North Carolina and the other states listed on Schedule 5.1 and (ii) the North Carolina and South Carolina Departments of Revenue;
(d) resolutions, certified as of the First Closing Date by the Secretary or Assistant Secretary of each of the Seller and Carolina Petroleum, adopted by the Board of Directors and the shareholders of the Seller and Carolina Petroleum, respectively, and authorizing the execution and delivery by the Seller of this Agreement and the other Transaction Documents to which Seller or Carolina Petroleum is a party, the performance by it of its obligations hereunder and thereunder and the consummation by it of the transactions contemplated hereby and thereby;
(e) such certificates of an officer of the Seller to evidence compliance with the conditions set forth in Sections 9.1 through 9.4, and 9.9 and 9.10 hereof, and any other certificates to evidence compliance with the conditions set forth in this Article IX as may be reasonably requested by the Purchaser or its counsel;
(f) the opinion of Xxxxxxxx, Xxxxxxx & Xxxx, P.A., counsel to the Seller and the Affiliates, dated the First Closing Date and addressed to the Purchaser in form substantially similar to that attached hereto as Exhibit B;
(g) executed Third Party Lease Assignments;
(h) such memoranda of lease, assignments, or other documents required to show, upon the recording of the Third Party Lease Assignments, a complete leasehold chain of title evidencing of record Purchaser’s leasehold interest in the Third Party Leases;
(i) power of attorney with respect to authorization to access the Trust Funds (except for those sites, if any, which Seller elects to retain responsibility under Sections 7.7 and 11.3(a)), assignment agreements, or other similar documents, ...
First Closing Deliveries. Without limiting the generality of any of the conditions to Closing set forth in Sections 7 and 8, and in addition to the deliveries set forth in Section 6, no later than immediately prior to the First Closing, the Company shall deliver or cause to be delivered to the Investor the following:
5.1 an option certificate from the Company’s security registrar confirming that the name of the Investor has been entered onto the Company’s option register, as holding the Commitment Options;
5.2 a copy of the duly executed Securities Registrar Direction;
5.3 a copy of the resolutions duly adopted by the Board of Directors of the Company, substantially in the form attached hereto as Exhibit B;
5.4 a certificate, executed on behalf of the Company by its Chief Executive Officer, Managing Director, Chairman or Chief Financial Officer, dated as of the First Closing Date, certifying that (a) the Company has performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the First Closing, and (b) all
First Closing Deliveries. (a) At the First Closing, Sellers shall deliver to Buyer:
(i) such instruments of assignment and conveyance as may be requested by Buyer in order effectively to transfer to Buyer good and marketable title to the Bovagnet Shares all in form requested by Buyer;
(ii) the corporate minutes book of Bovagnet;
(iii) certified resolutions of the Board of Directors of Bovagnet authorizing Buyer to become a shareholder of Bovagnet;
(iv) letters of resignation effective as of the Closing Date of each of the members of the Board of Directors and each of the officers of Bovagnet;
(v) an opinion of counsel from Xxxxx & XxXxxxxx, counsel to Schaublin Swiss, in the form attached hereto as Exhibit C;
(vi) patent, trademark and copyright assignments, in form and substance satisfactory to Buyer, effecting the transfer of the patents, trademarks and copyrights included in the Transferred Assets;
(vii) assignments (with lessor's consents thereto) of leasehold interests in any leased real or personal property included in the Transferred Assets;
(viii) a xxxx of sale, grant deed and such other documents of assignment, transfer and conveyance as Buyer shall reasonably request to transfer all right, title and interest of Schaublin Swiss and Schaublin USA in and to the Transferred Assets, free and clear of all Liens to Buyer;
(ix) a lease between Buyer and Schaublin Swiss for the premises located in Delemont, Switzerland in substantially the form attached hereto as Exhibit D;
(x) an employment agreement executed by Buyer and Xxxxxxx Xxxxxxxxx in substantially the form attached hereto as Exhibit E;
(xi) non-competition declarations executed by each of the stockholders of Schaublin Swiss in substantially the forms attached hereto as Exhibit F;
(xii) a sales and supply agreement between Buyer and Roulement Miniatures SA in substantially the form attached hereto as Exhibit G;
(xiii) a Trademark License Agreement, substantially in the form attached hereto as Exhibit H, pursuant to which Buyer shall license to Schaublin Swiss the "Schaublin" name and those trademarks described on SCHEDULE 2.3(a)(ix), which was obtained pursuant to Section 2.3(a)(ix), for the sole purposes of (A) Schaublin Swiss's use in connection with Schaublin Swiss's design, development, manufacture, assembly, sale, distribution, service and repair of machine tools generally of the nature sold by Schaublin Swiss prior hereto (the "Machine Tool Business") and (B) Schaublin Swiss's ownership of real property, but in no ...
First Closing Deliveries. (a) At the First Closing, Company will deliver to Purchaser (i) a certificate or certificates representing the First Closing Date Shares and (ii) a note or notes representing the First Closing Date Notes in the form attached as Exhibit A to the Indenture against payment of the First Closing Date Shares Purchase Price and the First Closing Date Notes Purchase Price, as the case may be, therefor by wire transfer of immediately available funds to an account designated by Company in writing two (2) Business Days prior to the First Closing Date.
(b) The certificate or certificates representing the First Closing Date Shares shall be subject to a legend restricting transfer under the Securities Act, such legend to be substantially as follows: "The shares represented by this certificate have been acquired for investment and have not been registered under the Securities Act of 1933, as amended. Such shares may not be sold or transferred in the absence of such registration or an opinion of counsel reasonably satisfactory to the Company as to the availability of an exemption from registration. The shares represented by this certificate are subject to restrictions on transfer, including any sale, pledge or other hypothecation, set forth in a stockholders agreement between the Company, Xxxx Atlantic Investments, Inc., Metromedia Company and certain other stockholders of the Company, a copy of which agreement may be obtained at no cost by written request made by the holder of record of this certificate to the secretary of the Company at the Company's principal executive offices."
(c) Company agrees to remove from the First Closing Date Shares the first legend set forth in paragraph (b) above in connection with a transfer pursuant to an effective Registration Statement (as defined in the Shares Registration Rights Agreement) or upon receipt of an opinion of counsel in form and substance reasonably satisfactory to Company that the First Closing Date Shares are eligible for transfer without registration under the Securities Act. Company agrees to remove from the First Closing Date Shares the second legend set forth in paragraph (b) above in accordance with the provisions of the Stockholders Agreement.
First Closing Deliveries. (a) At the First Closing, the Company shall deliver or cause to be delivered to Purchasers, and/or the Co-Placement Agents on behalf of the Purchasers, the following:
(i) a stock certificate for the number of Shares included in the Initial Units purchased by such Purchaser at the First Closing, in the name of such Purchaser and bearing a restrictive legend under the Securities Act as described in Section 3.2(j) below (such stock certificate may be delivered within three Trading Days of the First Closing Date; and
(ii) a Warrant registered in the name of such Purchaser to purchase up to a number of Shares equal to 100% of such Purchaser's Initial Units actually purchased hereunder at the First Closing, with an exercise price per Share equal to the consolidated closing bid price on the Nasdaq Capital Market (trading symbol "DARA") for one share of Common Stock for the trading day prior to the First Closing Date (the "Warrant Exercise Price"), subject to adjustment therein (such Warrant certificate may be delivered within three Trading Days of the First Closing Date).
(b) At the First Closing, the aggregate Purchase Price for the Initial Units purchased at the First Closing shall be delivered to the Company from the Escrow Account in accordance with Section 2.1(c).
First Closing Deliveries. (a) At the First Closing, the Company shall deliver or cause to be delivered to each Investor (i) a certificate evidencing a number of Initial Shares equal to such Investor’s Investment Amount divided by the Per Unit Purchase Price, registered in the name of such Investor, (ii) Warrants to purchase a number of Warrant Shares equal to such Investor’s Investment Amount divided by the Reference Value, registered in the name of such Investor, with an exercise price per share of Common Stock equal to the Reference Value, (iii) a copy, certified by an officer of the Company, of duly adopted resolutions of the Board of Directors of the Company, substantially in the form of Exhibit 2.2(a)(iii) attached hereto; and (iv) an opinion of counsel to the Company, substantially in the form of Exhibit 2.2(a)(iv) attached hereto, dated as of the date of the First Closing, as to the organization, good standing and authority of the Company, the enforceability of the Transaction Documents and the transferability of the Warrant Shares (the “Company Deliverables”).
(b) By the First Closing, each Investor shall deliver or cause to be delivered its counterpart signature page to this Agreement duly signed by such Investor (collectively, the “Investor Deliverables”).
(c) At the First Closing, each Investor shall cause to be delivered its Investment Amount, in United States dollars and in immediately available funds, by wire transfer to an account designated in writing by the Company for such purpose.
