First Closing. The Company understands that the Buyer's obligation to purchase the Initial Shares and acquire the Initial Repricing Rights and the Warrants from the Company pursuant to this Agreement on the Closing Date is conditioned upon the satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (1) Delivery by the Company to the Escrow Agent of the certificates for the Initial Shares and the Warrants in accordance with this Agreement; (2) Delivery by the Company to the Repricing Escrow Agent of the number of Escrow Shares required to be so delivered in accordance with this Agreement and the Escrow Agreement and receipt by the Buyer of written confirmation thereof; (3) The accuracy on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date and receipt by the Buyer of a certificate, dated the Closing Date, of the Chief Executive Officer or the Chief Financial Officer of the Company confirming such matters and such other matters as the Buyer may reasonably request; (4) The receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (A) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (B) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the transactions contemplated hereby and (C) such other matters as reasonably requested by the Buyer; (5) The Escrow Agent shall have executed and delivered the Escrow Agreement in the form attached hereto as Annex III; (6) Aura shall have executed and delivered the Parent Company Agreement in the form attached hereto as Annex V; and (7) Receipt by the Buyer on the Closing Date of an opinion of Xxxxx & Associates, counsel for the Company, dated the Closing Date, in form, scope and substance reasonably satisfactory to the Buyer, to the effect set forth in Annex VIIattached hereto.
Appears in 1 contract
Samples: Subscription Agreement (Newcom Inc)
First Closing. The On the First Closing Date, the Investor Member shall, for each Facility that is to become part of the Portfolio on the First Closing Date, make the Investor Member's First Capital Contribution to the capital of the Company understands that the Buyer's obligation to purchase the Initial Shares and acquire the Initial Repricing Rights and the Warrants from Managing Member shall, for each Facility that is to become part of the Portfolio on the First Closing Date, be deemed to have made the Managing Member's First Capital Contribution to the capital of the Company. A Facility shall become part of the Portfolio as a result of the Managing Member, or an Affiliate of the Managing Member, (i)(A) transferring 81% of its ownership interests in the entity holding title to, or a ground lessee's interest in, such Facility (such entity being the "FACILITY OWNER") to AL Funding Inc. and/or AL Subfunding LLC (together, "AL FUNDING") and arranging for such Facility Owner to enter into a Lease Transaction with the Company pursuant to this Agreement on the Closing Date is conditioned upon the satisfaction or a wholly-owned limited liability company subsidiary of the following conditions precedent on Company or before (B) transferring its fee interest in the Closing Date Rochester Facility to Sunrise Rochester Assisted Living, LLC (any which, upon such transfer shall become a Facility Owner for all purposes hereunder) and arranging for such Facility Owner to enter into a Lease Transaction with the Company or all a wholly-owned subsidiary of which may be waived the Company, (ii) transferring to the Company the reserves for FF&E and capital improvements held by the Buyer in its sole discretion):
Managing Member for each Facility, which reserves equal $100 per unit and (1iii) Delivery causing the Facility Owner to use the initial payment made by the Company to a Facility Owner under the Escrow Agent Lease Transaction to satisfy certain debt obligations associated with the Facilities. As a condition to the contribution by the Investor Member of the certificates for Investor Member's First Capital Contribution to the Initial Shares and capital of the Warrants in accordance with this Agreement;
(2) Delivery by Company, the Investor Member requires that the Company direct the Managing Member to the Repricing Escrow Agent of the number of Escrow Shares required make (or to be so delivered in accordance with this Agreement and the Escrow Agreement and receipt by the Buyer of written confirmation thereof;
(3) The accuracy on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required arrange for its Affiliates to be performed on or before the Closing Date and receipt by the Buyer of a certificate, dated the Closing Date, of the Chief Executive Officer or the Chief Financial Officer of the Company confirming such matters and such other matters as the Buyer may reasonably request;
(4) The receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (Amake) the Certificate of Incorporation transfers described in clauses (i) and By-Laws of the Company as in effect on the Closing Date, (B) all resolutions of the Board of Directors (and committees thereofii) of the Company relating to this Agreement immediately preceding sentence, and the transactions contemplated Company does hereby and (C) direct the Managing Member to make such other matters as reasonably requested by transfers. The Members agree that no Facility shall become part of the Buyer;
(5) The Escrow Agent shall have executed and delivered the Escrow Agreement in the form attached hereto as Annex III;
(6) Aura shall have executed and delivered the Parent Company Agreement in the form attached hereto as Annex V; and
(7) Receipt by the Buyer Portfolio on the First Closing Date unless on such date such Facility is or becomes subject to Lease Financing in an amount not less than the amount for such Facility specified in Schedule 2 hereto and the terms of an opinion of Xxxxx & Associates, counsel for the Company, dated the Closing Date, in form, scope and substance reasonably which are satisfactory to the Buyer, to the effect set forth in Annex VIIattached heretoInvestor Member.
Appears in 1 contract
First Closing. The Company understands that obligation of the Buyer's obligation Buyer hereunder to purchase the Initial Shares and acquire Debentures at the Initial Repricing Rights and First Closing is subject to the Warrants from satisfaction, at or before the Company pursuant to this Agreement on the First Closing Date is conditioned upon the satisfaction Date, of each of the following conditions (in addition to any other conditions precedent on or before elsewhere in this Agreement), provided that these conditions are for the Closing Date (any or all of which Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion)::
(1a) Delivery by the Company to the Escrow Agent of the certificates for the Initial Shares and the Warrants in accordance with this Agreement;
(2) Delivery by the Company to the Repricing Escrow Agent of the number of Escrow Shares required to be so delivered in accordance with this Agreement and the Escrow Agreement and receipt by the Buyer of written confirmation thereof;
(3) The accuracy on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date and receipt by the Buyer of a certificate, dated the Closing Date, of Each Credit Party and/or the Chief Executive Officer or the Officer/Chief Financial Officer of the Company confirming such matters and such other matters (as the Buyer may reasonably request;
(4applicable) The receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (A) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (B) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the transactions contemplated hereby and (C) such other matters as reasonably requested by the Buyer;
(5) The Escrow Agent Credit Party shall have executed and delivered the Escrow Agreement in Transaction Documents applicable to the form attached hereto as Annex III;First Closing and delivered the same to the Buyer, each signature of a Credit Party thereon being notarized.
(6b) Aura The representations and warranties of the Credit Parties shall be true and correct in all material respects (except to the extent that any of such representations and warranties are already qualified as to materiality in Article VI above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Credit Parties 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 Credit Parties at or prior to the First Closing Date.
(c) The Buyer shall have received an opinion of counsel from counsel to the Credit Parties in a form satisfactory to the Buyer and its counsel.
(d) The Credit Parties shall have executed and delivered to Buyer a closing certificate, certified as true, complete and correct by an officer of the Parent Company Agreement Credit Parties, in substance and form required by Buyer, which closing certificate shall include and attach as exhibits: (i) a true copy of a certificate of good standing evidencing the formation and good standing of the Credit Parties from the secretary of state (or comparable office) from the jurisdiction in which each Credit Party is formed; (ii) the Credit Parties’ Organizational Documents; (iii) copies of the resolutions of the board of directors of the Credit Parties as adopted by the Credit Parties’ board of directors or managers, in a form attached hereto acceptable to Buyer.; and (iv) copies of the resolutions adopted by the shareholders or members of the Credit Parties, as Annex V; andapplicable, approving and authorizing the execution, delivery and performance of the Transaction Documents to which it is party and the transactions contemplated thereby, in a form acceptable to Buyer.
(7e) Receipt No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(f) The Buyer shall have received copies of UCC search reports, issued by the Buyer on Secretary of State of the Closing Date state of an opinion incorporation or residency, as applicable, of Xxxxx & Associates, counsel for the CompanyCredit Parties, dated the Closing Date, in form, scope and substance such a date as is reasonably satisfactory acceptable to the Buyer, listing all effective financing statements which name the Credit Parties, under their present name and any previous names, as debtors, together with copies of such financing statements.
(g) The Credit Parties shall have executed such other agreements, certificates, confirmations or resolutions as the Buyer may require, to consummate the effect set forth in Annex VIIattached heretotransactions contemplated by this Agreement and the Transaction Documents, including a closing statement and joint disbursement instructions as may be required by Buyer.
Appears in 1 contract
Samples: Securities Purchase Agreement (Pacific Ventures Group, Inc.)
First Closing. The Company understands that obligation of the Buyer's obligation Buyer hereunder to purchase the Initial Shares and acquire Debentures at the Initial Repricing Rights and First Closing is subject to the Warrants from satisfaction, at or before the Company pursuant to this Agreement on the First Closing Date is conditioned upon the satisfaction Date, of each of the following conditions (in addition to any other conditions precedent on or before elsewhere in this Agreement), provided that these conditions are for the Closing Date (any or all of which Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion)::
(1) Delivery by the Company to the Escrow Agent of the certificates for the Initial Shares and the Warrants in accordance with this Agreement;
(2) Delivery by the Company to the Repricing Escrow Agent of the number of Escrow Shares required to be so delivered in accordance with this Agreement and the Escrow Agreement and receipt by the Buyer of written confirmation thereof;
(3a) The accuracy on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date and receipt by the Buyer of a certificateCompany, dated the Closing Date, of each Guarantor and/or the Chief Executive Officer or the Chief Financial Officer of the Company confirming such matters and such other matters Manager (as the Buyer may reasonably request;
(4applicable) The receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (A) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (B) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the transactions contemplated hereby and (C) such other matters as reasonably requested by the Buyer;
(5) The Escrow Agent shall have executed and delivered the Escrow Agreement in Transaction Documents applicable to the form attached hereto as Annex III;First Closing and delivered the same to the Buyer.
(6b) Aura The representations and warranties of the Credit Parties shall be true and correct in all material respects (except to the extent that any of such representations and warranties are already qualified as to materiality in Article VI above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company and each Guarantor 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 and each Guarantor at or prior to the First Closing Date.
(c) The Company shall have issued an irrevocable issuance instruction letter and board resolution, authorizing the issuance of the Advisory Fee Shares and irrevocably directing its Transfer Agent to issue and deliver the Advisory Fee Shares to Buyer or its designee.
(d) The Buyer shall have received an opinion of counsel from counsel to the Company in a form satisfactory to the Buyer and its counsel.
(e) The Buyer shall have received evidence in a form satisfactory to the Buyer that the Company has authorized the Buyer to publish such press releases with respect to this Agreement and the instant transaction, including, but not limited to, a copy of an email delivered to PR Newswire by the Company whereby the Company authorizes the Buyer to use its name and, if applicable, stock symbol, in connection with current or xxxxxx xxxxx releases.
(f) The Credit Parties shall have executed and delivered to Buyer a closing certificate, certified as true, complete and correct by an officer of the Parent Credit Parties, in substance and form required by Buyer, which closing certificate shall include and attach as exhibits: (i) a true copy of a certificate of good standing evidencing the formation and good standing of the Credit Parties from the secretary of state (or comparable office) from the jurisdiction in which the Company Agreement in is formed; (ii) the form attached hereto Credit Parties’ Organizational Documents; (iii) copies of the resolutions of the board of directors of the Credit Parties as Annex V; and
(7) Receipt adopted by the Buyer on the Closing Date Credit Parties’ board of an opinion directors or managers, as applicable, in a form acceptable to Buyer; and (iv) resolution of Xxxxx & Associates, counsel for the Company’s and KCI Investments’ members, dated approving and authorizing the Closing Dateexecution, delivery and performance of the Transaction Documents to which it is party and the transactions contemplated thereby, in form, scope and substance reasonably satisfactory a form acceptable to the Buyer.
(g) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(h) The Buyer shall have received copies of UCC search reports, issued by the Secretary of State of the state of incorporation or residency, as applicable, of the Company and each Guarantor, dated such a date as is reasonably acceptable to Buyer, listing all effective financing statements which name the Company and each Guarantor, under their present name and any previous names, as debtors, together with copies of such financing statements.
(i) The Company and each Guarantor shall have executed such other agreements, certificates, confirmations or resolutions as the Buyer may require to consummate the transactions contemplated by this Agreement and the Transaction Documents, including a closing statement and joint disbursement instructions as may be required by Buyer.
(j) The Company shall have delivered to the effect set forth in Annex VIIattached heretoBuyer the filed Certificate of Designation of Series B Preferred Stock and the original certificate evidencing the issuance of such shares to the Buyer.
Appears in 1 contract
Samples: Securities Purchase Agreement (Preferred Restaurant Brands, Inc.)
First Closing. The Company understands that obligation of the Buyer's obligation Buyer hereunder to purchase the Initial Shares and acquire Debentures at the Initial Repricing Rights and First Closing is subject to the Warrants from satisfaction, at or before the Company pursuant to this Agreement on the First Closing Date is conditioned upon the satisfaction Date, of each of the following conditions (in addition to any other conditions precedent on or before elsewhere in this Agreement), provided that these conditions are for the Closing Date (any or all of which Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion)::
(1a) Delivery by The Company shall have executed and delivered the Company Transaction Documents applicable to the Escrow Agent of First Closing and delivered the certificates for same to the Initial Shares and the Warrants in accordance with this Agreement;Buyer.
(2) Delivery by the Company to the Repricing Escrow Agent of the number of Escrow Shares required to be so delivered in accordance with this Agreement and the Escrow Agreement and receipt by the Buyer of written confirmation thereof;
(3b) The accuracy on the Closing Date of the representations and warranties of the Company contained shall be true and correct in all material respects (except to the extent that any of such representations and warranties are already qualified as to materiality in Article VI above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement as if made on the Closing Date and the performance to be performed, satisfied or complied with by the Company on at or before prior to the First Closing Date Date.
(c) The Buyer shall have received an opinion of all covenants counsel from counsel to the Company in a form satisfactory to the Buyer and agreements its counsel.
(d) The Buyer shall have issued an irrevocable issuance instruction letter and board resolution, authorizing the issuance of the Company required Advisory Fee Shares and irrevocably directing its Transfer Agent to be performed on issue and deliver the Advisory Fee Shares to Buyer or before the Closing Date and receipt by the Buyer of a certificate, dated the Closing Date, of the Chief Executive Officer or the Chief Financial Officer of the Company confirming such matters and such other matters as the Buyer may reasonably request;its designee.
(4e) The receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (A) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (B) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the transactions contemplated hereby and (C) such other matters as reasonably requested by the Buyer;
(5) The Escrow Agent shall have executed and delivered to Buyer a closing certificate in substance and form required by Buyer, which closing certificate shall include and attach as exhibits: (i) a true copy of a certificate of good standing evidencing the Escrow Agreement formation and good standing of the Company from the secretary of state (or comparable office) from the jurisdiction in which the Company is incorporated, as of a date within thirty (30) days of the First Closing Date; (ii) the Company’s Certificate of Incorporation; (iii) the Company’s Bylaws; and (iv) copies of the resolutions of the board of directors of the Company consistent with Section 6.3, as adopted by the Company’s board of directors in a form attached hereto as Annex III;reasonably acceptable to Buyer.
(6f) Aura No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(g) The Company shall have executed and delivered the Parent Company Agreement in the form attached hereto such other agreements, certificates, confirmations or resolutions as Annex V; and
(7) Receipt by the Buyer on may require to consummate the Closing Date of an opinion of Xxxxx & Associatestransactions contemplated by this Agreement and the Transaction Documents, counsel for the Company, dated the Closing Date, in form, scope including a closing statement and substance reasonably satisfactory to the joint disbursement instructions as may be required by Buyer, to the effect set forth in Annex VIIattached hereto.
Appears in 1 contract
Samples: Securities Purchase Agreement (Revolutions Medical CORP)
First Closing. The Company understands that obligation of the Buyer's obligation Buyer hereunder to purchase the Initial Shares and acquire Debentures at the Initial Repricing Rights and First Closing is subject to the Warrants from satisfaction, at or before the Company pursuant to this Agreement on the First Closing Date is conditioned upon the satisfaction Date, of each of the following conditions (in addition to any other conditions precedent on or before elsewhere in this Agreement), provided that these conditions are for the Closing Date (any or all of which Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion)::
(1a) Delivery by The Company shall have executed and delivered the Company Transaction Documents applicable to the Escrow Agent of First Closing and delivered the certificates for same to the Initial Shares and the Warrants in accordance with this Agreement;Buyer.
(2) Delivery by the Company to the Repricing Escrow Agent of the number of Escrow Shares required to be so delivered in accordance with this Agreement and the Escrow Agreement and receipt by the Buyer of written confirmation thereof;
(3b) The accuracy on the Closing Date of the representations and warranties of the Company contained shall be true and correct in all material respects (except to the extent that any of such representations and warranties are already qualified as to materiality in Article VI above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement as if made on the Closing Date and the performance to be performed, satisfied or complied with by the Company on at or before prior to the First Closing Date Date.
(c) The Buyer shall have received an opinion of all covenants counsel from counsel to the Company in a form satisfactory to the Buyer and agreements its counsel.
(d) The Buyer shall have issued an irrevocable issuance instruction letter and board resolution, authorizing the issuance of the Company required Incentive Shares and directing its transfer agent to be performed on issue and deliver the Incentive Shares to Buyer or before the Closing Date and receipt by the Buyer of a certificate, dated the Closing Date, of the Chief Executive Officer or the Chief Financial Officer of the Company confirming such matters and such other matters as the Buyer may reasonably request;its designee.
(4e) The receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (A) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (B) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the transactions contemplated hereby and (C) such other matters as reasonably requested by the Buyer;
(5) The Escrow Agent shall have executed and delivered to Buyer a closing certificate in substance and form required by Buyer, which closing certificate shall include and attach as exhibits: (i) a true copy of a certificate of good standing evidencing the Escrow Agreement formation and good standing of the Company from the secretary of state (or comparable office) from the jurisdiction in which the Company is incorporated, as of a date within ten (10) days of the First Closing Date; (ii) the Company’s Certificate of Incorporation; (iii) the Company’s Bylaws; and (iv) copies of the resolutions of the board of directors of the Company consistent with Section 6.3, as adopted by the Company’s board of directors in a form attached hereto as Annex III;reasonably acceptable to Buyer.
(6f) Aura No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(g) The Company shall have executed and delivered the Parent Company Agreement in the form attached hereto such other agreements, certificates, confirmations or resolutions as Annex V; and
(7) Receipt by the Buyer on may required to consummate the Closing Date of an opinion of Xxxxx & Associatestransactions contemplated by this Agreement and the Transaction Documents, counsel for the Company, dated the Closing Date, in form, scope including a closing statement and substance reasonably satisfactory to the joint disbursement instructions as may be required by Buyer, to the effect set forth in Annex VIIattached hereto.
Appears in 1 contract
Samples: Securities Purchase Agreement (Tootie Pie Company, Inc.)
First Closing. The Company understands that obligation of the Buyer's obligation Buyer hereunder to purchase the Initial Shares and acquire Debentures at the Initial Repricing Rights and First Closing is subject to the Warrants from satisfaction, at or before the Company pursuant to this Agreement on the First Closing Date is conditioned upon the satisfaction Date, of each of the following conditions (in addition to any other conditions precedent on or before elsewhere in this Agreement), provided that these conditions are for the Closing Date (any or all of which Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion)::
(1a) Delivery by The Company shall have executed and delivered the Company Transaction Documents applicable to the Escrow Agent of First Closing and delivered the certificates for same to the Initial Shares and the Warrants in accordance with this Agreement;Buyer.
(2) Delivery by the Company to the Repricing Escrow Agent of the number of Escrow Shares required to be so delivered in accordance with this Agreement and the Escrow Agreement and receipt by the Buyer of written confirmation thereof;
(3b) The accuracy on the Closing Date of the representations and warranties of the Company contained shall be true and correct in all material respects (except to the extent that any of such representations and warranties are already qualified as to materiality in Article VI above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement as if made on the Closing Date and the performance to be performed, satisfied or complied with by the Company on at or before prior to the First Closing Date Date.
(c) The Buyer shall have received an opinion of all covenants counsel from counsel to the Company in a form satisfactory to the Buyer and agreements its counsel.
(d) The Buyer shall have issued an irrevocable issuance instruction letter and board resolution, authorizing the issuance of the Company required Advisory Fee Shares and irrevocably directing its Transfer Agent to be performed on issue and deliver the Advisory Fee Shares to Buyer or before the Closing Date and receipt by the Buyer of a certificate, dated the Closing Date, of the Chief Executive Officer or the Chief Financial Officer of the Company confirming such matters and such other matters as the Buyer may reasonably request;its designee.
(4e) The receipt by the Buyer Company and each of a certificate, dated the Closing Date, of the Secretary of the Company certifying (A) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (B) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the transactions contemplated hereby and (C) such other matters as reasonably requested by the Buyer;
(5) The Escrow Agent its Subsidiaries shall have executed and delivered to Buyer a closing certificate in substance and form required by Buyer, which closing certificate shall include and attach as exhibits: (i) a true copy of a certificate of good standing evidencing the Escrow Agreement formation and good standing of the Company (or each Subsidiary, as applicable) from the secretary of state (or comparable office) from the jurisdiction in which the Company (or each Subsidiary) is incorporated, as of a date within ten (10) days of the First Closing Date; (ii) the Company’s (or Subsidiary’s) Certificate of Incorporation (or Articles of Organization); (iii) the Company’s (or Subsidiary’s) Bylaws (or operating agreement); and (iv) copies of the resolutions of the board of directors or managers, as applicable, of the Company (or Subsidiary) consistent with Section 6.3, as adopted by the Company’s board of directors in a form attached hereto as Annex III;reasonably acceptable to Buyer.
(6f) Aura No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(g) The Company shall have executed and delivered the Parent Company Agreement in the form attached hereto such other agreements, certificates, confirmations or resolutions as Annex V; and
(7) Receipt by the Buyer on may require to consummate the Closing Date of an opinion of Xxxxx & Associatestransactions contemplated by this Agreement and the Transaction Documents, counsel for the Company, dated the Closing Date, in form, scope including a closing statement and substance reasonably satisfactory to the joint disbursement instructions as may be required by Buyer, to the effect set forth in Annex VIIattached hereto.
Appears in 1 contract
Samples: Securities Purchase Agreement (Cyclone Power Technologies Inc)
First Closing. The Company understands that the Buyer's obligation of each Lender hereunder to purchase the Initial Shares and acquire the Initial Repricing Rights Notes and the Warrants from Shares at the Company pursuant First Closing is subject to this Agreement on the Closing Date is conditioned upon the satisfaction of the following conditions precedent on satisfaction, at or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion):
(1) Delivery by the Company to the Escrow Agent of the certificates for the Initial Shares and the Warrants in accordance with this Agreement;
(2) Delivery by the Company to the Repricing Escrow Agent of the number of Escrow Shares required to be so delivered in accordance with this Agreement and the Escrow Agreement and receipt by the Buyer of written confirmation thereof;
(3) The accuracy on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date and receipt by the Buyer of a certificate, dated the First Closing Date, of the Chief Executive Officer or the Chief Financial Officer each of the Company confirming such matters and such other matters as the Buyer may reasonably request;following conditions:
(4a) The receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (A) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (B) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the transactions contemplated hereby and (C) such other matters as reasonably requested by the Buyer;
(5) The Escrow Agent Principal Borrower shall have executed and delivered to each Lender (i) the Escrow Notes (in such denominations as such Lender shall have requested prior to the First Closing) being purchased by such Lender at the First Closing pursuant to this Agreement, (ii) each of the other Transaction Documents to which it is a party (other than the Transaction Documents contemplated to be executed and delivered to the Agent pursuant to the other subsections of this Section 5.1), and (iii) certificates representing the Shares (in such denominations as such Lender shall have requested prior to the First Closing) being purchased by such Lender at the First Closing pursuant to this Agreement.
(b) The Principal Borrower shall have delivered to such Lender a letter from the Principal Borrower’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) days of the First Closing Date.
(c) The Principal Borrower shall have executed and delivered to the Lenders the Registration Rights Agreement.
(d) The Principal Borrower shall have executed and delivered, or caused to be delivered, to the Agent the Fee Letter and evidence satisfactory to the Agent that the Principal Borrower shall pay to the Agent on the First Closing Date all fees and other amounts (including Accelerated First Closing Interest) due and owing thereon under the Fee Letter, this Agreement and the other Transaction Documents.
(e) The Principal Borrower shall have executed and delivered, or caused to be delivered, to the Agent the Security Agreement.
(f) The Principal Borrower shall have executed and delivered, or caused to be delivered, to the Agent deposit account control agreements and securities account control agreements, in form and substance satisfactory to the Agent, executed by the applicable banks, in each case as the Agent may request.
(g) The Principal Borrower shall have executed and delivered, or caused to be delivered, to the Agent the Affiliate Subordination Agreement.
(h) The Agent shall have received the opinions of Outside Legal Counsel, dated the First Closing Date, in substantially the forms of Exhibit F attached hereto.
(i) The Principal Borrower shall have executed and delivered, or caused to be delivered, to the Agent the Funds Flow Letter.
(j) The Principal Borrower shall have delivered to the Agent a copy of the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by the Principal Borrower’s transfer agent.
(k) The Principal Borrower shall have executed and delivered, or caused to be delivered, to the Agent a certificate evidencing its incorporation and good standing in its jurisdiction of incorporation issued by the Secretary of State of such jurisdiction, as of a date reasonably proximate to the First Closing Date.
(l) The Principal Borrower shall have executed and delivered, or caused to be delivered, to the Agent a certificate evidencing its qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Principal Borrower is qualified to conduct business and failure to so qualify would cause a Material Adverse Effect, as of a date reasonably proximate to the First Closing Date.
(m) The Principal Borrower shall have executed and delivered, or caused to be delivered, to the Agent a certificate as to the fact that no action has been taken with respect to any merger, consolidation, liquidation or dissolution of the Principal Borrower, or with respect to the sale of substantially all of its assets, nor is any such action pending or contemplated.
(n) The Principal Borrower shall have executed and delivered, or caused to be delivered, to the Agent a certified copy of the Principal Borrower’s certificate or articles of incorporation, as certified by the Secretary of State of its jurisdiction of incorporation, as of a date reasonably proximate to the First Closing Date.
(o) The Principal Borrower shall have executed and delivered, or caused to be delivered, to the Agent a certificate, executed by the secretary of the Principal Borrower and dated the First Closing Date, as to (i) the resolutions consistent with Section 7.2 as adopted by the Principal Borrower’s board of directors in a form reasonably acceptable to the Agent, (ii) the Principal Borrower’s articles or certificate of incorporation, each as in effect at the First Closing, (iii) the Principal Borrower’s bylaws, each as in effect at the First Closing, and (iv) no action having been taken by the Principal Borrower or its stockholders, directors or officers in contemplation of any amendments to items (i), (ii), or (iii) listed in this Section 5.1(o), as certified in the form attached hereto as Annex III;Exhibit H.
(6p) Aura The Common Stock (i) shall be designated for quotation or listed on the Principal Market and (ii) shall not have been suspended, as of the First Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the First Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market.
(q) The Principal Borrower shall have obtained all governmental, regulatory and third party consents and approvals, if any, necessary for the sale of the Securities at the First Closing.
(r) The Principal Borrower shall have obtained and delivered to the Agent searches of UCC filings in the jurisdictions of formation or incorporation of the Principal Borrower, the jurisdiction of the chief executive offices of the Principal Borrower and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Agent’s and Holders’ security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens.
(s) The Principal Borrower shall have authorized the filing of UCC financing statements for each appropriate jurisdiction as is necessary, in the Agent’s sole discretion, to perfect the Agent’s and Holders’ security interest in the Collateral.
(t) The Principal Borrower shall have authorized the filing of the Intellectual Property Security Agreements in the U.S. Patent and Trademark Office and the U.S. Copyright Office, as applicable.
(u) The Principal Borrower shall have executed and delivered delivered, or caused to be delivered, to the Parent Company Agreement Agent, with respect to each fee interest in real property owned by the Principal Borrower as of the First Closing Date, the following:
(i) a fully executed and notarized Mortgage, in proper form for recording in all applicable jurisdictions;
(ii) an opinion of counsel in the state in which such Mortgage is to be recorded with respect to the enforceability of the form attached hereto of Mortgage to be recorded in such state and such other matters as Annex VAgent may request, in each case in form and substance satisfactory to Agent;
(A) a title insurance policy or unconditional commitment therefore issued by one or more title companies satisfactory to the Agent with respect to such mortgaged property in amounts satisfactory to the Agent, together with a title report issued by a title company with respect thereto, dated as of as of a date reasonably proximate to the First Closing Date, each in form and substance satisfactory to the Agent; and (B) evidence satisfactory to the Agent that the Principal Borrower has paid to the title company all expenses and premiums of the title company and all other sums required in connection with the issuance of each such title policy and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording such Mortgage in the appropriate real estate records;
(iv) a flood certification with respect to such mortgaged property and evidence of flood insurance, if necessary, in each case in form and substance satisfactory to the Agent;
(v) a survey of such mortgaged property, certified to the Agent and dated as of a date reasonably proximate to the First Closing Date, in form and substance satisfactory to the Agent; and
(7vi) Receipt by such other agreements and documents relating to such Mortgage and mortgaged property as the Buyer on Agent or its counsel may reasonably request.
(v) The Principal Borrower shall have delivered, or caused to be delivered, to the Closing Date of an opinion of Xxxxx & Associates, counsel for the Company, dated the Closing Date, Agent such information in form, scope and substance reasonably satisfactory to the BuyerAgent regarding environmental matters relating to all real property owned, leased, operated or used by the Principal Borrower as of the First Closing Date.
(w) The Principal Borrower shall use its reasonable best efforts to have executed and delivered, or caused to be delivered, to the Agent such landlord waivers, collateral access agreements or other similar documents as the Agent may request.
(x) The Principal Borrower shall have delivered, or caused to be delivered, to the Agent certificates evidencing any Pledged Equity (as defined in the Security Agreement) pledged to the Agent pursuant to the Security Agreement, together with duly executed in blank, undated stock or unit powers attached thereto.
(y) The Agent shall have received a certificate from the chief financial officer of the Principal Borrower in form and substance satisfactory to the Agent, supporting the conclusions that, after giving effect set forth to the transactions contemplated by the Transaction Documents, the Principal Borrower and each of its Subsidiaries are not Insolvent.
(z) Since June 30, 2008, there shall have been no change (other than any reduction in Annex VIIattached heretocomparable store sales) which has had or could reasonably be expected to have a Material Adverse Effect.
(aa) The Agent shall have received certificates from the Principal Borrower’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to this Agreement is in full force and effect, together with endorsements naming the Agent, for the benefit of the Holders, as additional insured and lender’s loss payee thereunder.
(bb) The Principal Borrower shall have executed and delivered, or caused to be delivered, to the Agent the Post-Closing Obligations Letter.
(cc) The Principal Borrower shall have caused to be delivered to the Agent evidence satisfactory to the Agent that the holders of the Affiliate Notes have consented in all respects to the execution, delivery and performance of this Agreement and the other Transaction Documents, including the incurrence of Indebtedness and Liens hereunder and thereunder.
(dd) The representations and warranties of the Principal Borrower shall be true and correct as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date), and the Principal Borrower shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Principal Borrower at or prior to the First Closing Date. The Agent shall have received certificates, executed by the chief executive officer of the Principal Borrower, dated the First Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Agent, in the form attached hereto as Exhibit I.
(ee) The Principal Borrower shall have executed and/or delivered to the Agent such other documents relating to the transactions contemplated by this Agreement as the Agent or its counsel may reasonably request.
(ff) No Event of Default (or event or circumstance that, with the passage of time, the giving of notice, or both, would become an Event of Default) shall have occurred and be continuing or would result from the issuance of the Notes at the First Closing.
Appears in 1 contract
First Closing. The Company understands that the Buyer's obligation to purchase the Initial Shares and acquire the Initial Repricing Rights and the Warrants from the Company pursuant to this Agreement on the Closing Date is conditioned upon the Upon satisfaction of the following covenants and conditions precedent set forth in Sections 2.2 and 2.3, the First Closing shall occur at 10:00am (New York City time) on April 27, 2017 at the offices of Company Counsel, or before at such other time and location as the parties shall mutually agree in writing. At the First Closing, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, the First Closing Date (any or all of which may be waived Shares in exchange for payment by the Buyer in its sole discretion):
(1) Purchasers, severally and not jointly, of an aggregate amount equal to the First Closing Purchase Price. Each Purchaser’s applicable Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available for “Delivery by Versus Payment” settlement with the Company or its designee. At the First Closing, the Company shall deliver to each Purchaser its respective pro rata share of the First Closing Shares (based on such Purchaser’s applicable Subscription Amount relative to the Escrow Agent aggregate First Closing Purchase Price) (such Purchaser’s “Applicable First Closing Shares”), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the First Closing. Settlement of the certificates for the Initial First Closing Shares and the Warrants in accordance with this Agreement;
shall occur via “Delivery Versus Payment” (2“DVP”) Delivery by the Company to the Repricing Escrow Agent of the number of Escrow Shares required to be so delivered in accordance with this Agreement and the Escrow Agreement and receipt by the Buyer of written confirmation thereof;
(3) The accuracy i.e., on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date and receipt by the Buyer of a certificate, dated the First Closing Date, of the Chief Executive Officer or the Chief Financial Officer of the Company confirming such matters shall issue the Applicable First Closing Shares registered in each Purchaser’s name and such other matters as the Buyer may reasonably request;
(4) The receipt address and released by the Buyer of a certificateTransfer Agent directly to the account(s) identified by each Purchaser, dated the Closing Date, of the Secretary of the Company certifying and payment therefor shall be made by each Purchaser (A) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (B) all resolutions of the Board of Directors (and committees thereof) of the Company relating by wire transfer to this Agreement and the transactions contemplated hereby and (C) such other matters as reasonably requested by the Buyer;
(5) The Escrow Agent shall have executed and delivered the Escrow Agreement in the form attached hereto as Annex III;
(6) Aura shall have executed and delivered the Parent Company Agreement in the form attached hereto as Annex V; and
(7) Receipt by the Buyer on the Closing Date of an opinion of Xxxxx & Associates, counsel for the Company, dated the )). All First Closing Date, in form, scope and substance reasonably satisfactory Shares shall be delivered to the BuyerPurchasers hereunder free and clear of all Liens, to the effect set forth in Annex VIIattached heretoother than restrictions on transferability arising under applicable federal securities laws.
Appears in 1 contract
First Closing. The Company understands that obligations of the Buyer's obligation to purchase the Initial Shares and acquire the Initial Repricing Rights Investor and the Corporation to complete the purchase and sale of Debentures and the issuance of the Warrants from at the Company pursuant to this Agreement on the First Closing Date is conditioned are conditional upon the satisfaction of of, or compliance with, or waiver (to the extent waivable) by the party who benefits from the condition, the following conditions precedent (the “First Closing Conditions”):
3.1.1 each of the Investor and the Corporation duly completes, executes and returns to the other party this Agreement;
3.1.2 all necessary regulatory and CSE approvals (if any) required for the entering into of this Agreement and the completion of the Investment shall have been obtained prior to the First Closing;
3.1.3 before or after the First Closing Date, as applicable, the Corporation shall have posted CSE Form 9 and CSE Form 6 on the CSE's website;
3.1.4 the Corporation (a) shall have authorized and reserved for issuance such number of Common Shares that may be issuable upon conversion of the Debentures and exercise of the Warrants to be issued in connection with the First Closing and (b) shall be authorized to issue such Common Shares to the Investor pursuant to the policies of the CSE and upon issuance of such Common Shares to the Investor such Common Shares shall be fully paid, non- assessable and freely tradeable Common Shares;
3.1.5 the Share Lending Agreement shall have been duly executed by the parties thereto (in form and content acceptable to the Investor), Lent Shares equal to 150% of the aggregate principal amount of the first Tranche (based on the closing share price at the time of the First Closing Date) shall have been delivered to the Investor in accordance with the terms of such Share Lending Agreement and such Share Lending Agreement shall not have been contested and shall be in full force and effect between the relevant parties thereto;
3.1.6 the sale and issuance of the Debentures and the issuance of the Warrants at the First Closing, and the Common Shares issuable upon the conversion of the Debentures and the exercise of the Warrants are exempt from the requirement to file a prospectus or registration statement and the requirement to prepare and deliver an offering memorandum or similar document under any applicable law, or upon the issuance of such orders, consents or approvals as may be,required to permit such sale and issuance without the requirement to file a prospectus or registration statement or to prepare and deliver an offering memorandum or similar document;
3.1.7 delivery of a legal opinion dated as of the First Closing Date from the Corporation’s counsel , with respect to matters customarily addressed in connection with a transaction such as the Investment, including with respect to the conditions set out in Sections 3.1.2 through 3.1.6 above, in form and substance acceptable to the Investor and its legal counsel, acting reasonably;
3.1.8 the representations, warranties and certifications of the Investor addressed to the Corporation in this Agreement, and any other document delivered to the Corporation in connection with the Investment, are accurate in all material respects and remain true and correct in all material respects as at the First Closing Date; and (ii) the covenants and obligations of the Investor (as applicable to the First Closing) in this Agreement, and in any other document delivered to the Corporation in connection with the Investment, shall have been complied with or performed by the Investor, in all material respects, on or before the First Closing Date Date;
3.1.9 the representations, warranties and certifications of the Corporation addressed to the Investor in this Agreement, and in any other document delivered to the Investor in connection with the Investment, are accurate and remain true and correct as at the First Closing Date; and (ii) the covenants and obligations of the Corporation (as applicable to the First Closing) in this Agreement, and in any other document delivered to the Investor in connection with the Investment, shall have been complied with or all of which may be waived performed by the Buyer Corporation, in all material respects, on or before the First Closing Date,
3.1.10 the Corporation shall have delivered a certificate confirming the matters described in sections 3.1.2, 3.1.9, 3.1.11, 3.1.12 and 3.1.15 to the Investor, executed by a senior officer of the Corporation addressed to the Investor and dated as of the First Closing Date;
3.1.11 no order ceasing or suspending trading in the Common Shares on any stock exchange including a management cease trader order shall have been issued and no proceeding for such purposes shall be pending or threatened;
3.1.12 there shall not exist any Event of Default that remains uncured;
3.1.13 delivery of an officer's certificate by each of the Corporation and the Investor certifying (i) constating documents, (ii) authorizing board resolutions; and (iii) incumbency;
3.1.14 the Corporation shall have delivered a certificate of the issued and outstanding Common Shares from the transfer agent of the Corporation on the First Closing Date;
3.1.15 there shall not exist any binding commitment with respect to a Change of Control of the Corporation;
3.1.16 the Corporation shall deliver to the Investor a copy of a certificate of insurance from an insurance broker in respect of the Corporation and each Subsidiary, dated as of or within fifteen (15) days of the date of this Agreement, identifying insurers, types of insurance, insurance limits, policy terms, names of insureds, additional insureds or loss payees (including the designation of additional insured with respect to all property and liability insurance);
3.1.17 no payment shall be owing by the Corporation to the Investor pursuant to this Agreement, except for the Transaction Expenses, to the extent the parties agreed in writing that such payment shall occur by way of set-off against (i.e., deduction from) the Subscription Amount payable by the Investor to the Corporation in connection with the First Closing;
3.1.18 the Investor and Pelorus Fund REIT, LLC shall have entered into a subordination agreement in a form acceptable to the Investor, in its sole discretion):
(1) Delivery by , and the Company Corporation shall deliver written confirmation from Pelorus Fund REIT, LLC confirming that, all conditions to the Escrow Agent financing, other than the payment of the certificates for Subscription Amount in connection with the Initial Shares and the Warrants in accordance with this Agreement;
(2) Delivery by the Company to the Repricing Escrow Agent of the number of Escrow Shares required to be so delivered in accordance with this Agreement and the Escrow Agreement and receipt by the Buyer of written confirmation thereof;
(3) The accuracy on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date and receipt by the Buyer of a certificate, dated the Closing Date, of the Chief Executive Officer or the Chief Financial Officer of the Company confirming such matters and such other matters as the Buyer may reasonably request;
(4) The receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (A) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (B) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the transactions contemplated hereby and (C) such other matters as reasonably requested by the Buyer;
(5) The Escrow Agent shall First Tranche have executed and delivered the Escrow Agreement in the form attached hereto as Annex III;
(6) Aura shall have executed and delivered the Parent Company Agreement in the form attached hereto as Annex Vbeen fulfilled; and
(7) Receipt by 3.1.19 if deemed necessary in the Buyer on sole discretion of the Closing Date of Investor, the Corporation and the Investor shall have entered into an opinion of Xxxxx & Associates, counsel for the Company, dated the Closing Dateescrow agreement, in form, scope form and substance reasonably satisfactory acceptable to the BuyerInvestor and its legal counsel, pursuant to which the Subscription Amount in respect of the First Closing shall be deposited in escrow with legal counsel or an independent third party escrow agent mutually acceptable to the effect set forth in Annex VIIattached heretoCorporation and the Investor, each acting reasonably.
Appears in 1 contract
Samples: Issuance Agreement
First Closing. The Company understands that obligation of the Buyer's obligation Buyer hereunder to purchase the Initial Shares and acquire Debentures at the Initial Repricing Rights and First Closing is subject to the Warrants from satisfaction, at or before the Company pursuant to this Agreement on the First Closing Date is conditioned upon the satisfaction Date, of each of the following conditions (in addition to any other conditions precedent on or before elsewhere in this Agreement), provided that these conditions are for the Closing Date (any or all of which Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion)::
(1a) Delivery by The Company shall have executed and delivered the Company Transaction Documents applicable to the Escrow Agent of First Closing and delivered the certificates for same to the Initial Shares and the Warrants in accordance with this Agreement;Buyer.
(2) Delivery by the Company to the Repricing Escrow Agent of the number of Escrow Shares required to be so delivered in accordance with this Agreement and the Escrow Agreement and receipt by the Buyer of written confirmation thereof;
(3b) The accuracy on the Closing Date of the representations and warranties of the Company contained shall be true and correct in all material respects (except to the extent that any of such representations and warranties are already qualified as to materiality in Article VI above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement as if made on the Closing Date and the performance to be performed, satisfied or complied with by the Company on at or before prior to the First Closing Date Date.
(c) The Buyer shall have received an opinion of all covenants counsel from counsel to the Company in a form satisfactory to the Buyer and agreements its counsel.
(d) The Buyer or its counsel shall have issued an issuance instruction letter, authorizing the issuance of the Company required Incentive Shares and irrevocably directing its Transfer Agent to be performed on issue and deliver the Incentive Shares to Buyer or before the Closing Date and receipt by the Buyer of a certificate, dated the Closing Date, of the Chief Executive Officer or the Chief Financial Officer of the Company confirming such matters and such other matters as the Buyer may reasonably request;its designee.
(4e) The receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (A) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (B) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the transactions contemplated hereby and (C) such other matters as reasonably requested by the Buyer;
(5) The Escrow Agent shall have executed and delivered to Buyer a closing certificate in substance and form required by Buyer, which closing certificate shall include and attach as exhibits: (i) a true copy of a certificate of good standing evidencing the Escrow Agreement formation and good standing of the Company from the secretary of state (or comparable office) from the jurisdiction in which the Company is incorporated, as of a date within ten (10) days of the First Closing Date; (ii) the Company’s Certificate of Incorporation; (iii) the Company’s Bylaws; and (iv) copies of the resolutions of the board of directors of the Company consistent with Section 6.3, as adopted by the Company’s board of directors in a form attached hereto as Annex III;reasonably acceptable to Buyer.
(6f) Aura No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(g) The Company shall have executed and delivered the Parent Company Agreement in the form attached hereto such other agreements, certificates, confirmations or resolutions as Annex V; and
(7) Receipt by the Buyer on may require to consummate the Closing Date of an opinion of Xxxxx & Associatestransactions contemplated by this Agreement and the Transaction Documents, counsel for the Company, dated the Closing Date, in form, scope including a closing statement and substance reasonably satisfactory to the joint disbursement instructions as may be required by Buyer, to the effect set forth in Annex VIIattached hereto.
Appears in 1 contract
First Closing. The Company understands that obligation of each Buyer hereunder to pay the Buyer's obligation Purchase Price for its Preferred Shares to purchase the Initial Shares and acquire the Initial Repricing Rights and the Warrants from the Company pursuant or Lead Buyer Counsel, as applicable, at the First Closing is subject to this Agreement on the satisfaction, at or before the First Closing Date is conditioned upon the satisfaction Date, of each of the following conditions, provided that these conditions precedent on or before the Closing Date (any or all of which are for each Buyer’s sole benefit and may be waived by the such Buyer at any time in its sole discretion):discretion by providing the Company with prior written notice thereof:
(1i) Delivery The Company shall have duly executed and delivered to such Buyer each of the Transaction Documents to which it is a party and the Company shall have duly executed and delivered to such Buyer such aggregate number of shares of Series D Preferred Stock in certificated form at the First Closing as set forth across from such Buyer’s name in column (3) of the Schedule of Buyers as being purchased by such Buyer at the First Closing pursuant to this Agreement.
(ii) Each and every representation and warranty of the Company shall be true and correct as of the date when made and as of such Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Escrow Agent of the certificates for the Initial Shares and the Warrants in accordance with this Agreement;
(2) Delivery by the Company to the Repricing Escrow Agent of the number of Escrow Shares required to be so delivered in accordance with this Agreement and the Escrow Agreement and receipt by the such Closing Date. Such Buyer of written confirmation thereof;
(3) The accuracy on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date and receipt by the Buyer of shall have received a certificate, dated the Closing Date, of duly executed by the Chief Executive Officer or the Chief Financial Officer of the Company confirming Company, dated as of such matters Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in form and substance acceptable to the Buyer may reasonably request;Company and the Lead Buyer’s Counsel.
(4iii) Such Buyer shall have received the opinion(s) of Company’s counsel, dated as of such Closing Date, in form and substance acceptable to the Company and the Lead Buyer’s Counsel.
(iv) The receipt Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company in Wyoming issued by the Secretary of State (or comparable office) of Wyoming as of a date within two (2) days of such Closing Date.
(v) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of each Subsidiary in the respective jurisdiction in which it is formed, which certificate shall be issued by the Secretary of State (or comparable office) of such jurisdiction as of a date within two (2) days of such Closing Date.
(vi) The Company shall have delivered to such Buyer copies of the Articles of Incorporation, the Series C Certificate of Designation, the Series D Certificate of Designation and the Company’s other certificates of designations for any other previously designated shares of Preferred Stock, each certified or presented for filing, as the case may be, by the Secretary of State of the State of Wyoming, within two (2) days of such Closing Date.
(vii) The Company shall have delivered to such Buyer a certificate, dated in form and substance acceptable to the Closing DateCompany and the Lead Buyer’s Counsel, of executed by the Secretary of the Company and dated as of each Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s board of directors, which includes an acknowledgement of Section 3(i), in form and substance acceptable to the Company and the Lead Buyer’s Counsel, (ii) the Articles of Incorporation of the Company and (iii) the Bylaws of the Company, each as in effect at such Closing.
(viii) The Company shall have delivered to such Buyer a letter or register from the Transfer Agent certifying the number of shares of Common Stock outstanding on such Closing Date immediately prior to such Closing.
(ix) The Common Stock (A) the Certificate of Incorporation and By-Laws of the Company shall be designated for quotation or listed (as in effect applicable) on the Principal Market and (B) shall not have been suspended, as of such Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened (Bexcept as disclosed on Schedule 3(n)), as of such Closing Date, either (I) all resolutions in writing by the SEC or the Principal Market or (II) by falling below the minimum maintenance requirements of the Board of Directors Principal Market.
(x) Subject to Stockholder Approval, the Company shall have obtained all governmental, regulatory or third party consents and committees thereof) approvals, if any, necessary for the sale of the Company relating to this Agreement and Securities, including without limitation, those required by the Principal Market, if any.
(xi) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated hereby by the Transaction Documents.
(xii) Since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably could have or result in a Material Adverse Effect.
(xiii) The Company and (C) its Subsidiaries shall have delivered to such Buyer such other matters documents, instruments or certificates relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably requested by the Buyer;request.
(5xiv) The Escrow Agent Such Buyer shall have executed and delivered the Escrow Agreement in the form attached hereto as Annex III;
(6) Aura shall have executed and delivered the Parent Company Agreement in the form attached hereto as Annex V; and
(7) Receipt by the Buyer received a letter on the Closing Date letterhead of an opinion of Xxxxx & Associates, counsel for the Company, dated duly executed by the Chief Executive Officer of the Company, setting forth the wire amounts of each Buyer and the wire transfer instructions of the Company, and of Lead Buyer Counsel with respect to the First Purchase Amount as well as the Special Account and the Second Purchase Amount (the “Flow of Funds Letter”).
(xv) The Company shall have provided confirmation from the Secretary of State of the State of Wyoming that each of the Series C Certificate of Designation and Series D Certificate of Designation has been submitted for filing with the Secretary of State of the State of Wyoming on or prior to such Closing Date, in form, scope and substance reasonably satisfactory to the Buyer, to the effect set forth in Annex VIIattached hereto.
Appears in 1 contract
Samples: Securities Purchase Agreement (Vocodia Holdings Corp)
First Closing. CONDITIONS TO EACH PURCHASER'S OBLIGATIONS. The Company understands that obligation of each Purchaser to consummate the Buyer's obligation First Closing is further subject to purchase the Initial Shares and acquire satisfaction, at or prior to the Initial Repricing Rights and the Warrants from the Company pursuant to this Agreement on the First Closing Date is conditioned upon the satisfaction Date, of the following conditions precedent additional conditions:
(a) The representations and warranties of the Issuer contained herein that are qualified as to materiality or Material Adverse Effect shall be true and correct in all respects on or before and as of the First Closing Date (any or all of which may be waived by the Buyer in its sole discretion):
(1) Delivery by the Company to the Escrow Agent of the certificates for the Initial Shares and the Warrants in accordance with this Agreement;
(2) Delivery by the Company to the Repricing Escrow Agent of the number of Escrow Shares required to be so delivered in accordance with this Agreement and the Escrow Agreement and receipt by the Buyer of written confirmation thereof;
(3) The accuracy on the Closing Date of the representations and warranties of the Company Issuer contained herein that are not so qualified shall be true and correct in this Agreement all material respects on and as of the First Closing Date, in each case as if made on and as of such date; the Closing Date Issuer shall have performed and the performance by the Company on or before the Closing Date of complied in all material respects with all covenants and agreements of the Company required by this Agreement to be performed on or before complied with by it at or prior to the First Closing Date; and such Purchaser shall have received a certificate dated the First Closing Date signed by an authorized officer of the Issuer to the foregoing effect;
(b) The Certificate of Designation shall have been filed with the Division of Corporations and receipt Commercial Code of the State of Utah in accordance with the law of the State of Utah;
(c) The Registration Rights Agreement shall have been executed and delivered by the Buyer of a certificateparties thereto and be in full force and effect;
(d) Each Purchaser shall have received opinions, dated the First Closing Date, of counsel to the Chief Executive Officer or the Chief Financial Officer of the Company confirming Issuer, addressing such matters and such other matters as shall be reasonably requested by the Buyer may reasonably requestPurchasers;
(4e) The receipt by the Buyer of a certificateNo action, dated the Closing Datesuit, of the Secretary of the Company certifying (A) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Dateinvestigation, (B) all resolutions of the Board of Directors (and committees thereof) of the Company relating to litigation or proceeding challenging this Agreement and or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the First Closing or which could have an adverse affect on the ability of the Issuer to perform its obligations under this Agreement shall have been instituted by any Governmental Authority before any court, arbitrator or governmental body, agency or official binding on any party hereto and be pending;
(Cf) such other matters as Each Purchaser shall have received all documents reasonably requested by it relating to the Buyer;
(5) The Escrow Agent shall have executed existence of Issuer, the corporate authority for Issuer entering into, and delivered the Escrow Agreement validity of, this Agreement, the Certificate of Designation, and the Series D Shares, all in the form attached hereto as Annex III;
(6) Aura shall have executed and delivered the Parent Company Agreement in the form attached hereto as Annex V; and
(7) Receipt by the Buyer on the Closing Date of an opinion of Xxxxx & Associates, counsel for the Company, dated the Closing Date, in form, scope and substance reasonably satisfactory to it; and
(g) The Issuer shall have received all consents and waivers by third parties that are required for the Buyerissuance of the Securities and the consummation of the transactions contemplated hereby on terms reasonably satisfactory to Purchaser (including (i) waivers of all shareholders' contractual or other preemptive and similar rights, and (ii) any consents required in order that the transactions contemplated hereby do not constitute a breach of, a default under, or a termination or modification of any material agreement to which the effect set forth in Annex VIIattached heretoIssuer or any Subsidiary is a party or to which any portion of the property of the Issuer or any Subsidiary is subject).
Appears in 1 contract
Samples: Securities Purchase Agreement (United Shipping & Technology Inc)
First Closing. The Company understands that obligation of the Buyer's obligation Buyer hereunder to purchase the Initial Shares and acquire Debentures at the Initial Repricing Rights and First Closing is subject to the Warrants from satisfaction, at or before the Company pursuant to this Agreement on the First Closing Date is conditioned upon the satisfaction Date, of each of the following conditions (in addition to any other conditions precedent on or before elsewhere in this Agreement), provided that these conditions are for the Closing Date (any or all of which Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion)::
(1a) Delivery by The Company, each Guarantor and/or the Company President (as applicable) shall have executed and delivered the Transaction Documents applicable to the Escrow Agent of First Closing and delivered the certificates for same to the Initial Shares and the Warrants in accordance with this Agreement;Buyer.
(2) Delivery by the Company to the Repricing Escrow Agent of the number of Escrow Shares required to be so delivered in accordance with this Agreement and the Escrow Agreement and receipt by the Buyer of written confirmation thereof;
(3b) The accuracy on the Closing Date of the representations and warranties of the Company contained shall be true and correct in all material respects (except to the extent that any of such representations and warranties are already qualified as to materiality in Article VI above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company and each Guarantor shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement as if made on the Closing Date and the performance to be performed, satisfied or complied with by the Company on and each Guarantor at or before prior to the First Closing Date of all covenants Date.
(c) The Buyer shall have issued an irrevocable issuance instruction letter and agreements board resolution, authorizing the issuance of the Advisory Fee Shares and irrevocably directing its Transfer Agent to issue and deliver the Advisory Fee Shares to Buyer or its designee.
(d) The Buyer shall have received an opinion of counsel from counsel to the Company required in a form satisfactory to be performed on or before the Closing Date and receipt by the Buyer of and its counsel.
(e) The Buyer shall have received evidence in a certificate, dated form satisfactory to the Closing Date, of the Chief Executive Officer or the Chief Financial Officer of Buyer that the Company confirming such matters and such other matters as has authorized the Buyer may reasonably request;
(4) The receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (A) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (B) all resolutions of the Board of Directors (and committees thereof) of the Company relating to publish such press releases with respect to this Agreement and the transactions contemplated hereby and (C) such other matters as reasonably requested instant transaction, including, but not limited to, a copy of an email delivered to Xxxxxxxxxx.xxx by the Buyer;Company whereby the Company authorizes the Buyer to use its name and, if applicable, stock symbol, in connection with current or xxxxxx xxxxx releases.
(5f) The Escrow Agent Company and each Guarantor shall have executed and delivered to Buyer a closing certificate, certified as true, complete and correct by an officer of the Escrow Agreement Company or Guarantor, in substance and form required by Buyer, which closing certificate shall include and attach as exhibits: (i) a true copy of a certificate of good standing evidencing the formation and good standing of the Company or Guarantor from the secretary of state (or comparable office) from the jurisdiction in which the Company is formed; (ii) the Company’s or Guarantor’s Organizational Documents; (iii) copies of the resolutions of the board of directors of the Company or Guarantor as adopted by the Company’s or Guarantor’s board of directors, in a form attached hereto as Annex III;acceptable to Buyer; and (iv) resolution of the Guarantor’s shareholders, approving and authorizing the execution, delivery and performance of the Transaction Documents to which it is party and the transactions contemplated thereby, in a form acceptable to the Buyer.
(6g) Aura No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(h) The Buyer shall have received copies of UCC search reports, issued by the Secretary of State of the state of incorporation or residency, as applicable, of the Company and each Guarantor, dated such a date as is reasonably acceptable to Buyer, listing all effective financing statements which name the Company and each Guarantor, under their present name and any previous names, as debtors, together with copies of such financing statements.
(i) The Company and each Guarantor shall have executed and delivered the Parent Company Agreement in the form attached hereto such other agreements, certificates, confirmations or resolutions as Annex V; and
(7) Receipt by the Buyer on may require to consummate the Closing Date of an opinion of Xxxxx & Associatestransactions contemplated by this Agreement and the Transaction Documents, counsel for the Company, dated the Closing Date, in form, scope including a closing statement and substance reasonably satisfactory to the joint disbursement instructions as may be required by Buyer, to the effect set forth in Annex VIIattached hereto.
Appears in 1 contract
First Closing. The Company understands that Upon the terms and subject to the conditions of this Agreement, at the First Closing provided for in Section 2.03 and for no separate consideration under this Agreement or the Brokerage Asset Purchase Agreement, subject to the allocation of the Purchase Price as provided for in the Brokerage Asset Purchase Agreement, Seller shall, and shall cause each other Seller Entity to, sell, convey, assign, transfer and deliver or cause to be sold, conveyed, assigned, transferred and delivered to Buyer (or to a Subsidiary of Buyer, as directed by Buyer), and Buyer (or such Subsidiary) shall purchase, acquire and assume from each Seller Entity, good and valid title in and to all of such Seller Entity's obligation right, title and interest in and to purchase all of the Initial Shares property and acquire assets, real, personal or mixed, tangible or intangible (including goodwill), of every kind and description, wherever located (other than the Initial Repricing Rights Excluded Assets, the Wrap Assets and the Warrants from Final Closing Assets) used primarily in or necessary to conduct the Company pursuant OMEGA Business (the "OMEGA Assets"), free and clear of any Liens other than Permitted Liens, including:
(i) each Seller Entity's rights with respect to this Agreement on the Closing Date is conditioned upon the satisfaction Eligible OMEGA Accounts as of the following conditions precedent on or before First Closing Date, other than the Closing Date Excluded OMEGA Accounts (any or all of which may be waived by the Buyer in its sole discretion):
(1) Delivery by the Company to the Escrow Agent of the certificates for the Initial Shares and the Warrants in accordance with this Agreement"Transferred OMEGA Accounts");
(2ii) Delivery by the Company each Seller Entity's rights under any Wrap Agreements or other agreements related to the Repricing Escrow Agent of the number of Escrow Shares required Transferred OMEGA Accounts, including each Seller Entity's rights as to be so delivered in accordance with this Agreement all guarantees, warranties and the Escrow Agreement and receipt by the Buyer of written confirmation thereofindemnities related thereto;
(3iii) The accuracy on with respect to the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required Transferred OMEGA Accounts, but subject to be performed on or before the Closing Date and receipt by the Buyer of a certificate, dated the Closing Date, of the Chief Executive Officer or the Chief Financial Officer of the Company confirming such matters and such other matters as the Buyer may reasonably request;applicable privacy laws:
(4) The receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (A) all material information relating to each Transferred OMEGA Account (all such information, the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, "Transferred OMEGA Account Information"); and
(B) all resolutions of the Board of Directors (rights granted by Clients to use Transferred OMEGA Account Information, including all Client instructions and committees thereof) of the Company relating consents with respect to this Agreement and the transactions contemplated hereby and (C) such other matters as reasonably requested by the Buyersolicitation;
(5iv) The Escrow Agent shall have executed each such Seller Entity's rights with respect to the accrued and delivered unpaid fees with respect to the Escrow Agreement in the form attached hereto as Annex IIITransferred OMEGA Accounts;
(6v) Aura except to the extent previously transferred to Buyer under the Brokerage Asset Purchase Agreement, all equipment, furniture, fixtures, improvements and all other tangible personal property used primarily in or necessary to conduct the OMEGA business as set forth on Schedule I, provided that any such property which is identified by Buyer and Seller as being used in more than one business unit shall have executed and delivered be transferred to Buyer at the Parent Company Agreement Final Closing;
(vi) each such Seller Entity's rights under all Assumed Contracts as set forth in the form attached hereto applicable Undertaking used primarily in or necessary to conduct the OMEGA Business;
(vii) all Permits received by or issued to any Seller Entity or any employee or officer thereof to own, or lease and operate the Transferred OMEGA Accounts or otherwise used primarily in or necessary to conduct the OMEGA Business;
(viii) Trademarks and Intellectual Property, together with all additions, modifications, updates and enhancements used primarily in or necessary to conduct the OMEGA Business;
(ix) except to the extent previously transferred to Buyer under the Brokerage Asset Purchase Agreement and subject to Section 3.05, the Books and Records applicable to the OMEGA Business, provided that any such Books and Records which are identified by Buyer and Seller as Annex Vbeing used in more than one business unit shall be transferred to Buyer at the Final Closing; and
(7x) Receipt by the such prepaid fees and expenses and other assets as Buyer on the Closing Date of an opinion of Xxxxx & Associates, counsel and Seller shall mutually agree as necessary and appropriate for the Company, dated operation by Buyer of the Closing Date, in form, scope and substance reasonably satisfactory to the Buyer, to the effect set forth in Annex VIIattached heretoOMEGA Business.
Appears in 1 contract
First Closing. The Company understands that obligation of the Buyer's obligation Buyer hereunder to purchase the Initial Shares and acquire Debentures at the Initial Repricing Rights and First Closing is subject to the Warrants from satisfaction, at or before the Company pursuant to this Agreement on the First Closing Date is conditioned upon the satisfaction Date, of each of the following conditions (in addition to any other conditions precedent on or before elsewhere in this Agreement), provided that these conditions are for the Closing Date (any or all of which Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion)::
(1a) Delivery by The Company, each Guarantor and/or the Company Chief Executive Officer (as applicable) shall have executed and delivered the Transaction Documents applicable to the Escrow Agent of First Closing and delivered the certificates for same to the Initial Shares and the Warrants in accordance with this Agreement;Buyer.
(2) Delivery by the Company to the Repricing Escrow Agent of the number of Escrow Shares required to be so delivered in accordance with this Agreement and the Escrow Agreement and receipt by the Buyer of written confirmation thereof;
(3b) The accuracy on the Closing Date of the representations and warranties of the Company contained and the Corporate Guarantors shall be true and correct in all material respects (except to the extent that any of such representations and warranties are already qualified as to materiality in Article VI above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company and the Corporate Guarantors shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement as if made on the Closing Date and the performance to be performed, satisfied or complied with by the Company on and the Corporate Guarantors at or before prior to the First Closing Date Date.
(c) The Buyer shall have issued an irrevocable issuance instruction letter and board resolution, authorizing the issuance of all covenants shares issuable pursuant to the Debenture and agreements the Fee Debenture and irrevocably directing its Transfer agent to issue and deliver shares issuable pursuant to the Debenture and the Fee Debenture to Buyer or its designee.
(d) The Buyer shall have received an opinion of counsel from counsel to the Company required and the Corporate Guarantors in a form satisfactory to be performed on or before the Closing Date and receipt by the Buyer of and its counsel.
(e) The Buyer shall have received evidence in a certificate, dated form satisfactory to the Closing Date, of the Chief Executive Officer or the Chief Financial Officer of Buyer that the Company confirming such matters and such other matters as has authorized the Buyer may reasonably request;
(4) The receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (A) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (B) all resolutions of the Board of Directors (and committees thereof) of the Company relating to publish such press releases with respect to this Agreement and the transactions contemplated hereby and (C) such other matters as reasonably requested instant transaction, including, but not limited to, a copy of an email delivered to Mxxxxxxxxx.xxx by the Buyer;Company whereby the Company authorizes the Buyer to use its name and, if applicable, stock symbol, in connection with current or fxxxxx xxxxx releases.
(5f) The Escrow Agent Company and the Corporate Guarantors shall have executed and delivered to Buyer a closing certificate, certified as true, complete and correct by an officer of the Escrow Agreement Company and the Corporate Guarantors , in substance and form required by Buyer, which closing certificate shall include and attach as exhibits: (i) a true copy of a certificate of good standing evidencing the formation and good standing of the Company and the Corporate Guarantors from the secretary of state (or comparable office) from the jurisdiction in which the each Company and the Corporate Guarantors is formed; (ii) the Company and the Corporate Guarantors ’ Organizational Documents; (iii) copies of the resolutions of the board of directors of the Company and the Corporate Guarantors as adopted by the Company and the Corporate Guarantors’ board of directors or managers, in a form attached hereto as Annex III;acceptable to Buyer; and (iv) resolution of the Corporate Guarantor’s shareholders, approving and authorizing the execution, delivery and performance of the Transaction Documents to which it is party and the transactions contemplated thereby, in a form acceptable to the Buyer.
(6g) Aura No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(h) The Buyer shall have received copies of UCC search reports, issued by the Secretary of State of the state of incorporation or residency, as applicable, of the Company and the Corporate Guarantors, dated such a date as is reasonably acceptable to Buyer, listing all effective financing statements which name the Company and the Corporate Guarantors, under their present name and any previous names, as debtors, together with copies of such financing statements.
(i) The Company and the Corporate Guarantors shall have executed and delivered the Parent Company Agreement in the form attached hereto such other agreements, certificates, confirmations or resolutions as Annex V; and
(7) Receipt by the Buyer on may require to consummate the Closing Date of an opinion of Xxxxx & Associatestransactions contemplated by this Agreement and the Transaction Documents, counsel for the Company, dated the Closing Date, in form, scope including a closing statement and substance reasonably satisfactory to the joint disbursement instructions as may be required by Buyer, to the effect set forth in Annex VIIattached hereto.
Appears in 1 contract
Samples: Securities Purchase Agreement (Inventergy Global, Inc.)
First Closing. (1) At the First Closing on the Closing Date, the Buyer hereby agrees to purchase from the Company the Initial Shares at the price per share and for the aggregate purchase price set forth on the signature page of this Agreement. The Company understands that Purchase Price shall be payable in United States Dollars. In connection with the purchase of the Initial Shares by the Buyer's obligation , the Company shall issue to the Buyer, at the closing on the Closing Date, (A) the number of Initial Repricing Rights set forth on the signature page of this Agreement equal to one Initial Repricing Right for each Base Share issued as part of the Initial Shares (which Initial Repricing Right shall be deemed incorporated and part of each Base Share issued) and (B) Warrants in the form attached hereto as Annex I to purchase the number of shares of Common Stock set forth on the signature page of this Agreement.
(A) The Buyer shall pay the Purchase Price for the Initial Shares by delivering good funds in United States Dollars to the Escrow Agent identified in the Joint Escrow Instructions attached hereto as Annex III. Such delivery of funds shall be made against delivery by the Company of the certificates for the Initial Shares (which for purposes of the closing shall be deemed to incorporate and include one Initial Repurchase Right for each Base Share) and the Warrants registered in the name of the Buyer or its nominee. Promptly following payment by the Buyer to the Escrow Agent of the Purchase Price, but in any event prior to the Closing Date, the Company shall deliver certificates for the Initial Shares and acquire the Warrants, registered in the name of the Buyer or its nominee, to the Escrow Agent for release by the Escrow Agent pursuant to the Joint Escrow Instructions. The certificates for the Initial Repricing Rights and the Warrants from the Company pursuant to this Agreement on the Closing Date is conditioned upon the satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may Shares shall be waived by the Buyer in its sole discretion):
(1) Delivery delivered by the Company to the Escrow Agent on a delivery against payment basis at the closing. By signing this Agreement, the Buyer and the Company each agrees to all of the certificates terms and conditions of, and becomes a party to, the Joint Escrow Instructions, all of the provisions of which are incorporated herein by this reference as is set forth in full.
(B) Following the First Closing, the Initial Repricing Rights issued thereat shall constitute separate rights under this Agreement independent of the Base Shares. The subsequent sale or transfer of the Base Shares shall not affect the Buyer's ownership of or rights with respect to such Initial Repricing Rights.
(3) Payment of the purchase price for the Initial Shares and the Warrants in accordance with this Agreement;
(2) Delivery Second Tranche Shares shall be made by wire transfer of funds to: Citibank, N.A. 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 ABA#000000000 For credit to A/C#37179446 For credit to the account of Xxxxx X. Xxxxx Attorney Escrow Account Reference: __________________ Not later than 4:00 p.m., New York City time, on the date which is three Business Days after the Company to the Repricing Escrow Agent of the number of Escrow Shares required to be so delivered in accordance with shall have accepted this Agreement and returned a signed counterpart of this Agreement to the Buyer or its legal counsel, the Buyer shall deposit with the Escrow Agreement and receipt by Agent the Buyer of written confirmation thereof;
(3) The accuracy on the Closing Date of the representations and warranties of the Company contained in this Agreement as if made on the Closing Date and the performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date and receipt by the Buyer of a certificate, dated the Closing Date, of the Chief Executive Officer or the Chief Financial Officer of the Company confirming such matters and such other matters as the Buyer may reasonably request;
(4) The receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (A) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (B) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the transactions contemplated hereby and (C) such other matters as reasonably requested by the Buyer;
(5) The Escrow Agent shall have executed and delivered the Escrow Agreement in the form attached hereto as Annex III;
(6) Aura shall have executed and delivered the Parent Company Agreement in the form attached hereto as Annex V; and
(7) Receipt by the Buyer on the Closing Date of an opinion of Xxxxx & Associates, counsel aggregate purchase price for the Company, dated the Closing Date, in form, scope and substance reasonably satisfactory to the Buyer, to the effect set forth in Annex VIIattached heretoInitial Shares.
Appears in 1 contract
Samples: Subscription Agreement (Newcom Inc)
