First Closing. The obligation of the Buyer hereunder to purchase the Debentures at the First Closing is subject to the satisfaction, at or before the First Closing Date, of each of the following conditions (in addition to any other conditions precedent elsewhere in this Agreement), provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion: (a) The Company, each Guarantor and/or the Chief Executive Officer (as applicable) shall have executed and delivered the Transaction Documents applicable to the First Closing and delivered the same to the Buyer. (b) The representations and warranties of the Company 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 Buyer shall have received an opinion of counsel from counsel to the Company in a form satisfactory to the Buyer and its counsel. (d) 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 Xxxxxxxxxx.xxx 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. (e) The 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 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 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. (f) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect. (g) 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. (h) The Company and each Guarantor shall have executed such other agreements, certificates, confirmations or resolutions as the Buyer may reasonably require to consummate the transactions contemplated by this Agreement and the Transaction Documents, including a closing statement and joint disbursement instructions as may be reasonably required by Buyer.
Appears in 1 contract
Samples: Securities Purchase Agreement (Medytox Solutions, Inc.)
First Closing. The obligation first closing at which the Purchasers shall purchase Shares hereunder shall take place at the offices of the Buyer hereunder Company at 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx at 12:00 p.m. on December 29, 1998, or such later date not later than December 31, 1998 as the Company may specify upon not less than 24 hours notice by facsimile transmission or telephone (the "First Closing"). Not less than two (2) business days before the First Closing, the Company shall deliver to purchase the Debentures Purchasers its initial Notice of Sale specifying the number of Shares to be sold to each Purchaser at the First Closing is subject to the satisfaction, at or before Closing. At the First Closing Date, of each of the following conditions (in addition to any other conditions precedent elsewhere in this Agreement), provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretionClosing:
(a) The Company, each Guarantor and/or the Chief Executive Officer (as applicable) Company shall have executed and delivered the Transaction Documents applicable deliver to the First Closing and delivered the same to the Buyer.
(b) The representations and warranties of the Company 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 abovePurchasers a certificate, 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 most recent practicable date, 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 Buyer shall have received an opinion of counsel from counsel to the Company in a form satisfactory to the Buyer legal existence and its counsel.
(d) 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 Xxxxxxxxxx.xxx 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.
(e) The 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 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 corporate 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 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.
(f) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(g) The Buyer shall have received copies of UCC search reports, issued by the Secretary of State of the state Commonwealth of incorporation or residencyMassachusetts;
(b) The Company shall deliver to the Purchasers the Articles of Organization of the Company, as applicableamended and in effect as of the First Closing Date, certified by the Secretary of State of the Commonwealth of Massachusetts, as of the most recent practicable date;
(c) The Company shall deliver to the Purchasers the By-laws of the Company, certified by its Clerk as in effect as of the First Closing Date;
(d) The Company shall deliver to the Purchasers a copy of the resolutions of the Board of Directors of the Company authorizing and each Guarantorapproving this Agreement and the issuance of the Shares hereby, dated such a date as is reasonably acceptable to Buyer, listing all effective financing statements which name certified by the Secretary of the Company and each Guarantor, under their present name and any previous names, as debtors, together with copies of such financing statements.the First Closing Date; and
(he) The Company shall deliver to the Purchasers certificates for the Shares being purchased by each Purchaser at the First Closing, registered in the name of each such Purchaser;
(f) Each Purchaser shall pay to the Company the Purchase Price for the number of Shares set forth in the Notice of Sale for the First Closing, by wire transfer or certified check; and
(g) The Company and each Guarantor Purchaser shall have executed such other agreements, certificates, confirmations or resolutions as the Buyer may reasonably require to consummate the transactions contemplated by this Agreement execute and the Transaction Documents, including deliver a closing statement and joint disbursement instructions as may be reasonably required by BuyerCross-Receipt.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Interleaf Inc /Ma/)
First Closing. The obligation Subject to the satisfaction or waiver of the Buyer hereunder to conditions set forth in Section 4.2(a) and Section 4.2(b) below, the completion of the purchase the Debentures at and sale of the First Closing is subject to the satisfaction, at or before Shares and the First Closing Warrants (the “First Closing”) shall occur no later than the second business day after the execution of this Agreement by the Investors and the Company (the “First Closing Date”), in accordance with Rule 15c6-l promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). At the First Closing, (a) the Company shall cause Wxxxx Fargo Shareowner Services, the Company’s “Transfer Agent”, to deliver to each Investor the number of First Closing Shares set forth on the Signature Page of such Investor registered in the name of such Investor or, if so indicated on the Investor Questionnaire of such Investor attached hereto as Exhibit A, in the name of a nominee designated by such Investor, (b) the Company shall cause to be delivered to such Investor a First Closing Warrant for the number of First Closing Warrant Shares set forth on the Signature Page of such Investor and (c) the aggregate purchase price for the First Closing Shares and the First Closing Warrants being purchased by such Investor at such First Closing as set forth on the Signature Page of such Investor will be delivered by or on behalf of such Investor to the Company. Notwithstanding anything contained herein to the contrary, if the First Closing shall not have occurred on or prior to the date that is two (2) business days after the execution of this Agreement by the Investors and the Company (unless the First Closing shall not have occurred due to a breach by an Investor of the terms hereof), then the Investors may terminate this Agreement without further liability of any kind to the Company or the Investors, provided that (i) any such termination of this Agreement shall not relieve any party hereto of any liability in respect of any breach hereof arising prior to the termination of this Agreement (or following conditions (in addition such termination with respect to any other conditions precedent elsewhere in provisions that survive the termination of this Agreement), provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion:
(a) The Company, each Guarantor and/or the Chief Executive Officer (as applicable) shall have executed and delivered the Transaction Documents applicable to the First Closing and delivered the same to the Buyer.
(b) The representations and warranties of the Company 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 Buyer shall have received an opinion of counsel from counsel to the Company in a form satisfactory to the Buyer and its counsel.
(d) 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 Xxxxxxxxxx.xxx 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.
(e) The 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 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; (iiithis last sentence of Section 4.1(a) 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 directorsand Sections 2.3, in a form acceptable to Buyer; 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 23 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 Buyer24 shall survive any such termination.
(f) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(g) 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.
(h) The Company and each Guarantor shall have executed such other agreements, certificates, confirmations or resolutions as the Buyer may reasonably require to consummate the transactions contemplated by this Agreement and the Transaction Documents, including a closing statement and joint disbursement instructions as may be reasonably required by Buyer.
Appears in 1 contract
Samples: Subscription Agreement (Sarissa Capital Management LP)
First Closing. The obligation sale and purchase of the Buyer hereunder Series D Notes to be purchased by each Purchaser of a Series D Note (each such Purchaser of a Series D Note, a “First Closing Purchaser”), shall occur at a closing (the “First Closing”) to be held not later than 1:00 p.m. New York time (the First Closing Purchasers’ reinvestment deadline) at the offices of Xxxxxx, Xxxxx & Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 on December 22, 2017 (the “First Closing Date”). At the First Closing, the Company will deliver to each First Closing Purchaser the Series D Notes to be purchased by such First Closing Purchaser in the form of a single Series D Note (or such greater number of Series D Notes in denominations of at least $100,000 as such First Closing Purchaser may request) dated the First Closing Date and registered in such First Closing Purchaser’s name (or in the name of its nominee), against delivery by such First Closing Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the Debentures account of the Company in accordance with the wire instructions set forth in the Funding Instruction Letter delivered by the Company in connection with such First Closing. If at the First Closing is subject to the satisfaction, at or before the First Closing Date, of each of the following conditions (in addition to any other conditions precedent elsewhere in this Agreement), provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion:
(a) The Company, each Guarantor and/or the Chief Executive Officer (as applicable) shall have executed and delivered the Transaction Documents applicable to the First Closing and delivered the same to the Buyer.
(b) The representations and warranties of the Company shall be true and correct fail to tender such Series D Notes to any First Closing Purchaser as provided above in all material respects (except to the extent that this Section 3.1, or any of the conditions specified in Section 4 shall not have been fulfilled to such representations and warranties are already qualified as to materiality in Article VI above, in which caseFirst Closing Purchaser’s satisfaction, such representations and warranties shall First Closing Purchaser shall, at its election, be true and correct in relieved of all respects further obligations under this Agreement with respect to Series D Notes to be purchased by such First Closing Purchaser at the First Closing, without further qualification) as thereby waiving any rights such First Closing Purchaser may have by reason of any of the date when made and as of the conditions specified in Section 4 not having been fulfilled to such 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 Purchaser’s satisfaction or complied with such failure by the Company and each Guarantor at or prior to the First Closing Datetender such Series D Notes.
(c) The Buyer shall have received an opinion of counsel from counsel to the Company in a form satisfactory to the Buyer and its counsel.
(d) 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 Xxxxxxxxxx.xxx 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.
(e) The 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 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 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.
(f) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(g) 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.
(h) The Company and each Guarantor shall have executed such other agreements, certificates, confirmations or resolutions as the Buyer may reasonably require to consummate the transactions contemplated by this Agreement and the Transaction Documents, including a closing statement and joint disbursement instructions as may be reasonably required by Buyer.
Appears in 1 contract
Samples: Note Purchase Agreement (Empire State Realty OP, L.P.)
First Closing. The obligation (a) Subject to and conditional upon the satisfaction or waiver of the Buyer hereunder applicable Closing conditions, the consummation of the purchase and sale of the First Tranche Shares (the “First Closing”) shall take place on the second Business Day after all the applicable Closing conditions to purchase this Agreement have been satisfied or waived at 10:00 am Los Angeles time, or at such other date, time or place as the Debentures Purchaser and the Company may agree (the date and time at which the First Closing is actually held being the “First Closing Date”). The Parties need not be physically present at the First Closing is subject to the satisfaction, at or before the First Closing Date, of each of the following conditions (in addition to any other conditions precedent elsewhere in this Agreement), provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion:
(a) The Company, each Guarantor and/or the Chief Executive Officer (as applicable) shall have executed and delivered the Transaction Documents applicable to the First Closing and delivered the same to the Buyerparticipate telephonically.
(b) The representations At the First Closing, the Purchaser shall pay the Company $200,000 of the Purchase Price. $100,000 of such amount shall be immediately deposited into the Company’s Citizens Bank Account No. 1403508094 (the “Current Bank Account”) and warranties used solely by the Company to satisfy accrued and outstanding liabilities of the Company 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 Date. The authorized signatory of the Current Bank Account (except for representations and warranties that speak as of a specific datethe “Authorized Signatory”) 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 may not be performed, satisfied or complied with by the Company and each Guarantor at or prior to changed after the First Closing Dateuntil the Second Closing, during which time period the Authorized Signatory shall have full and irrevocable authority to satisfy all such liabilities. The Company shall provide the Purchaser one Business Day preceding the First Closing a schedule of the estimated liabilities to be paid, indicating the payees, amounts and dates of payment, but such schedule shall not be conclusive but just a good faith estimate.
(c) The Buyer $100,000 balance of the consideration for the First Tranche Shares shall have received be deposited into a second Company bank account at an opinion institution of counsel from counsel to the Company in Purchaser’s choosing (the “New Bank Account”) with a form satisfactory to signatory designated solely by the Buyer Purchaser and its counsel.
(d) The Buyer shall have received evidence in a form satisfactory to the Buyer be used for working capital purposes that the Company has authorized the Buyer to publish such press releases with respect to this Agreement and the instant transaction, includinginclude, but are not limited to, a copy operating expenses, accounting, legal, transfer agent, taxes, regulatory, proxy solicitation, distribution of an email delivered proxy and information statements, and any other expenses necessary to Xxxxxxxxxx.xxx 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.
(e) The Company and each Guarantor shall have executed and delivered to Buyer a closing certificate, certified as true, complete and correct by an officer maintain listing of the Company or Guarantor, in substance on the OTC Pink tier 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 other necessary costs to maintain the formation and good standing operations of the Company or Guarantor from the secretary as a shell company that complies with all SEC, FINRA, OTC and other regulatory requirements, and to cover all expenses 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 Purchaser, the board of directors of the Company or Guarantor as adopted by the Company’s or Guarantor’s board of directors, in a form 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 Principal Stockholders and the transactions contemplated thereby, in a form acceptable to Representative associated with the Buyer.
(f) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(g) The Buyer shall have received copies consummation 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.
(h) The Company and each Guarantor shall have executed such other agreements, certificates, confirmations or resolutions as the Buyer may reasonably require to consummate the transactions contemplated by this Agreement and the Transaction DocumentsAncillary Documents (the “Transactions”), including a closing statement all legal, regulatory and joint disbursement instructions accounting fees and related expenses (collectively, the “Purchaser Expenses”). The Company shall commence paying Purchaser Expenses on the First Closing Date.
(d) At the First Closing, the Purchaser shall also deposit the remainder of the Purchase Price (“Escrow Funds”) into an escrow account (“Escrow”) with Sxxxxx Seurities, as escrow agent (the “Escrow Agent”) pursuant to the Escrow Agreement attached hereto as Exhibit B, to be released at the Second Closing or as otherwise provided in this Agreement The Escrow Funds may not be reasonably required released from Escrow without the signature of the Company (as controlled by BuyerPurchaser) and the Mxxxxxx Xxxxx, as representative of the Principal Stockholders (the “Representative”).
(e) In the event the funds retained in the Current Bank Account as of the First Closing Date are not sufficient to satisfy all liabilities as of the First Closing Date, the Purchaser, Company and Representative shall cause Escrow Funds to be released and used to pay any such remaining liabilities existing as of the First Closing, on or before the Second Closing which are not Purchaser Expenses, and any remaining funds after payment of such liabilities shall be paid to the Company. Any Purchaser Expenses shall be paid solely by the Company through the New Bank Account. For avoidance of doubt, any and all Purchaser Expenses and liabilities of the Company incurred after the First Closing, shall not be satisfied with Escrow Funds or from the Current Account, but only from other Company sources including the New Bank Account.
Appears in 1 contract
First Closing. The obligation of the Buyer hereunder to purchase the Debentures at the First Closing is subject to the satisfaction, at or before the First Closing Date, of each of the following conditions (in addition to any other conditions precedent elsewhere in this Agreement), provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion:
(a) The Company, each Guarantor and/or closing of the Chief Executive Officer purchase of the First Common Stock and First Warrants (as applicablethe “First Closing”) shall have executed take place remotely via the electronic exchange of documents and delivered signatures, or at such other time and place as the Transaction Documents applicable Parties may agree in writing, on the first (1st) Business Day after satisfaction or waiver of the conditions set forth in Section 6.1 and Section 6.2 (other than those conditions that by their terms are to be satisfied at the First Closing, but subject to the satisfaction or waiver of those conditions). The date on which the First Closing actually occurs shall be referred to herein as the “First Closing Date.” At the First Closing, the Company shall issue the First Common Stock and delivered the same First Warrants to the BuyerPurchaser free and clear of all Liens against payment by the Purchaser of the First Purchase Price.
(b) The representations and warranties At the First Closing, the Company shall:
(i) deliver or cause to be delivered to the Purchaser:
(A) a certificate of good standing of the Company 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 datedate no earlier than two (2) 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 Business Days prior to the First Closing Date.;
(cB) The Buyer shall have received an opinion of counsel from counsel to the Company in a form satisfactory to the Buyer and its counsel.certificate contemplated by Section 6.1(f);
(dC) The Buyer shall have received evidence in a form satisfactory counterparts to Warrant Certificates representing the Buyer that the Company has authorized the Buyer full number of First Warrants (as may be adjusted pursuant 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 Xxxxxxxxxx.xxx 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.Section 2.1(a));
(e) The 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 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; (iiiD) copies of the resolutions of or written consents duly adopted by the board of directors of the Company or Guarantor as adopted Board and certified by the Company’s or Guarantor’s board of directors, in a form acceptable to Buyer; and (iv) resolution of the Guarantor’s shareholders, approving and secretary authorizing the execution, delivery and performance of the Transaction Documents to which it is party this Agreement and the transactions contemplated therebyhereby, in a form acceptable including the Charter Amendment; and
(E) counterparts to the Buyer.
(f) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(g) The Buyer shall have received copies of UCC search reportsA&R Registration Rights Agreement, issued duly executed by the Secretary of State of the state of incorporation or residency, as applicable, of the Company and each Guarantorthe other parties thereto; and
(F) counterparts to the Investor Rights Agreement, dated such a date as is reasonably acceptable to Buyer, listing all effective financing statements which name duly executed by the Company and each Guarantor, under their present name and any previous names, as debtors, together with copies of such financing statements.the other parties thereto;
(hii) The Company and each Guarantor shall have executed such deliver or cause to be delivered any other agreementscustomary documents or certificates reasonably requested by Purchaser which are reasonably necessary to give effect to the Closing; and
(iii) pay, certificates, confirmations or resolutions as the Buyer may reasonably require cause to consummate the transactions contemplated by this Agreement and the Transaction Documents, including a closing statement and joint disbursement instructions as be paid to Purchaser (which may be reasonably required by Buyerset off against the First Purchase Price), any portion of the Expense Reimbursement then accrued and unpaid.
Appears in 1 contract
Samples: Securities Purchase Agreement (Armata Pharmaceuticals, Inc.)
First Closing. The obligation of the Buyer hereunder to purchase the Debentures at the First Closing is subject to the satisfaction, at or before the First Closing Date, of each of the following conditions (in addition to any other conditions precedent elsewhere in this Agreement), provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion:
(a) The Company, each Guarantor and/or closing of the Chief Executive Officer purchase of the First Common Stock and First Warrants (as applicablethe “First Closing”) shall have executed take place remotely via the electronic exchange of documents and delivered signatures, or at such other time and place as the Transaction Documents applicable Parties may agree in writing, on the first (1st) Business Day after satisfaction or waiver of the conditions set forth in Section 6.1 and Section 6.2 (other than those conditions that by their terms are to be satisfied at the First Closing, but subject to the satisfaction or waiver of those conditions). The date on which the First Closing actually occurs shall be referred to herein as the “First Closing Date.” At the First Closing, the Company shall issue the First Common Stock and delivered the same First Warrants to the BuyerPurchaser free and clear of all Liens against payment by the Purchaser of the First Purchase Price.
(b) The representations and warranties At the First Closing, the Company shall:
(i) deliver or cause to be delivered to the Purchaser:
(A) a certificate of good standing of the Company 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 datedate no earlier than two (2) 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 Business Days prior to the First Closing Date.;
(cB) The Buyer shall have received the certificate contemplated by Section 6.1(f);
(C) counterparts to Warrant Certificates representing the full number of First Warrants (as may be adjusted pursuant to Section 2.1(a));
(D) an opinion of counsel from counsel to the Company in a form satisfactory to the Buyer and its counsel.
(d) 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 Xxxxxxxxxx.xxx 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.
(e) The 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 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; outside legal counsel, dated as of the First Closing Date, in a customary form reasonably acceptable to Purchaser;
(iiiE) copies of the resolutions of or written consents duly adopted by the board of directors of the Company or Guarantor as adopted Board and certified by the Company’s or Guarantor’s board of directors, in a form acceptable to Buyer; and (iv) resolution of the Guarantor’s shareholders, approving and secretary authorizing the execution, delivery and performance of the Transaction Documents to which it is party this Agreement and the transactions contemplated therebyhereby, in including the Charter Amendment or minutes from a form acceptable duly convened meeting of the Board at which such matters were authorized;
(F) counterparts to the Buyer.Registration Rights Agreement, duly executed by the Company; and
(fG) No event shall have occurred which could reasonably be expected counterparts to have a Material Adverse Effect.the Investor Rights Agreement, duly executed by the Company;
(gii) The Buyer shall have received copies of UCC search reportsdeliver or cause to be delivered any other customary documents or certificates reasonably requested by Purchaser which are reasonably necessary to give effect to the Closing; and
(iii) pay, issued by or cause to be paid to Purchaser (which may be set off against the Secretary of State First Purchase Price), any portion of the state of incorporation or residency, as applicable, of the Company Expense Reimbursement then accrued 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 statementsunpaid.
(h) The Company and each Guarantor shall have executed such other agreements, certificates, confirmations or resolutions as the Buyer may reasonably require to consummate the transactions contemplated by this Agreement and the Transaction Documents, including a closing statement and joint disbursement instructions as may be reasonably required by Buyer.
Appears in 1 contract
Samples: Securities Purchase Agreement (Entasis Therapeutics Holdings Inc.)
First Closing. (a) On the terms and conditions set forth in this Agreement, the closing of the Tranche 1 Purchase (the “First Closing”) shall occur at 10:00 am New York City time on the date hereof by the electronic exchange of documents (the date on which the First Closing occurs is referred to herein as the “First Closing Date”).
(b) At the First Closing:
(i) Subject to the Purchaser’s compliance with Section 2.02(b)(ii), the Company shall deliver to the Purchaser (1) the Tranche 1 Securities registered in the name of any Purchaser, free and clear of all Liens (except for any restrictions on ownership and transfer imposed by the Company Charter Documents, the Securities Act and any applicable securities Laws) and record the Purchaser as the owner of such Tranche 1 Securities on the books and records of the Company; and (2) the Transaction Documents to which it is a party, duly executed by the Company.
(ii) Subject to the Company’s compliance with Section 2.02(b)(i) and the satisfaction or waiver of the condition set forth in Section 2.02(c), the Purchaser shall (1) pay the Tranche 1 Purchase Price to the Company, by wire transfer in immediately available U.S. federal funds, to an account designated by the Company in writing, (2) deliver to the Company the Transaction Documents to which it is a party, duly executed by the Purchaser and (3) deliver to the Company a duly executed, valid, accurate and properly completed Internal Revenue Service (“IRS”) Form W-9 from the Purchaser.
(c) The obligation of the Buyer hereunder Purchaser to purchase the Debentures at consummate the First Closing is subject to the satisfaction, at satisfaction or before the First Closing Date, of each waiver by Purchaser of the following conditions (in addition to any other conditions precedent elsewhere in this Agreement), provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretionconditions:
(ai) The Company, each Guarantor and/or the Chief Executive Officer (as applicable) shall have executed and delivered the Transaction Documents applicable after giving effect to the First Closing and delivered the same Company’s intended use of the Tranche 1 Purchase Price, to the Buyer.
(b) The representations and warranties Knowledge of the Company, the Company is not then in default under, or then in breach of any covenants of, any of the debt financing facilities of the Company set forth on Section 2.02(c) of the Company Disclosure Letter (the “Debt Financing Facilities”);
(ii) (A) each of the Fundamental Representations shall be true and correct accurate 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 First Closing Date as if made on and as of the First Closing Date as though made at that time (except for other than any such representations and warranties that speak which by their terms are made as of a specific earlier date) and the Company and each Guarantor , which shall have performed, satisfied been true and complied accurate in all material respects with as of such earlier date) and (B) each of the covenants, agreements other representations and conditions required by this Agreement to be performed, satisfied or complied with warranties made by the Company in this Agreement shall be true and accurate in all respects as of the First Closing Date as if made on and as of the First Closing Date (other than any such representations and warranties which by their terms are made as of a specific earlier date, which shall have been true and accurate in all respects as of such earlier date), other than failures to be true and accurate that have not resulted in a Material Adverse Effect; provided, however, that, in the case of each Guarantor at of the foregoing clause (B), for purposes of determining the accuracy of such representations and warranties, all materiality and similar qualifications limiting the scope of such representations and warranties shall be disregarded;
(iii) the Purchaser shall have received from the Company a certificate from a secretary or prior to an executive officer of the Company, dated as of the First Closing Date., to the effect that each of the conditions specified in clauses (i) and (ii) of this Section 2.02(c) has been satisfied; and
(civ) The Buyer the Purchaser shall have received an opinion of counsel from counsel to the Company in a form satisfactory to the Buyer REIT Opinion and its counsela Company Counsel Opinion.
(d) 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 Xxxxxxxxxx.xxx 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.
(e) The 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 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 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.
(f) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(g) 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.
(h) The Company and each Guarantor shall have executed such other agreements, certificates, confirmations or resolutions as the Buyer may reasonably require to consummate the transactions contemplated by this Agreement and the Transaction Documents, including a closing statement and joint disbursement instructions as may be reasonably required by Buyer.
Appears in 1 contract
First Closing. The obligation first closing (the “First Closing”) of the Buyer hereunder to purchase the Debentures transactions contemplated by this agreement will take place at the offices of the Purchaser on December 14, 2006 (the “Date of First Closing is subject to the satisfaction, at or before Closing”). At the First Closing DateClosing, simultaneously with the execution and delivery of each this agreement, unless otherwise indicated below or mutually agreed by the parties, the parties shall perform or procure performance of the following conditions (in addition to any other conditions precedent elsewhere in this Agreement), provided that these conditions are for the Buyer’s sole benefit transactions and may be waived by the Buyer at any time in its sole discretionactions:
(a) The Company, each Guarantor and/or shall present to the Chief Executive Officer (as applicable) shall have executed Purchaser a written consent by EDS to sign and delivered execute an assignment agreement, in the Transaction Documents applicable to form of Exhibit 4(a). Notwithstanding the forgoing, such consent may be presented by the Company after the First Closing and delivered but not later than twenty one (21) days following the same to the Buyer.First Closing;
(b) The representations each of BluePhoenix Solutions USA, Inc. and warranties of the Company Xxxx Xxxxxxxxxx shall be true execute and correct in all material respects (except to the extent that any of such representations deliver an employment agreement, noncompetition agreement, and warranties are already qualified as to materiality in Article VI abovetrade secret agreement, in which case, such representations and warranties shall be true and correct in all respects without further qualification) effective as of the date when made and as Effective Date, in the form of the First Closing Date as though made at that time Exhibit 4(c) (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.“Executive Agreement”);
(c) The Buyer the Company shall have received an opinion of counsel from counsel deliver to the Company in a form satisfactory to the Buyer and its counsel.
(d) 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, Purchaser a copy of an email delivered to Xxxxxxxxxx.xxx (certified as correct 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.
(e) The Company and each Guarantor shall have executed and delivered to Buyer a closing certificate, certified as true, complete and correct by an officer Secretary of the Company or Guarantor, in substance and form required by Buyer, which closing certificate shall include and attach as exhibits: (iCompany) 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 minute of the board of directors of the Company or Guarantor approving the transaction contemplated by this Agreement and authorising the signature, execution and First Closing (as adopted by the Company’s or Guarantor’s board appropriate), of directors, in this Agreement and any documents ancillary to it and a form acceptable to Buyer; and copy (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.
(f) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(g) The Buyer shall have received copies of UCC search reports, issued certified as correct by the Secretary of State the Company) of the state resolution of incorporation or residency, as applicable, the shareholders of the Company authorizing the execution 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 delivery of such financing statements.
(h) The Company and each Guarantor shall have executed such other agreements, certificates, confirmations or resolutions as the Buyer may reasonably require to consummate the transactions contemplated by this Agreement;
(d) the Company shall deliver (at their then current location) all the assets which are capable of transfer by delivery with the intent that legal and beneficial ownership of those assets shall pass on delivery;
(e) each of the Company and Purchaser shall deposit in the Escrow Account the amount to be deposited by the respective party as set forth under the Escrow Agreement. Notwithstanding the forgoing, the parties shall make such deposit within three (3) business days follwoing the date of the First Closing;
(f) the Company shall deliver to the Purchaser or such person as the Purchaser may nominate:
(i) duly executed assignments in the agreed form of all the Intellectual Property and all documents of title relating to the Intellectual Property;
(ii) the originals of any Contracts;
(iii) duly executed approvals, consents or agreements to the assignment or novation of the Contracts;
(iv) all documents of title and registration documents relating to the fixed plant, the loose plant and equipment, the leased assets;
(v) duly executed releases or certificates of non-crystallisation as required by the Purchaser in respect of all encumbrances over the assets;
(vi) such duly executed transfers and assignments as the Purchaser may require to vest in the Purchaser full title to and of the other assets and rights to be sold; and
(vii) Counterparts of the Escrow Agreement duly executed by the Company and the Transaction Documents, including a closing statement and joint disbursement instructions as may be reasonably required by BuyerCompany’s Representative.
Appears in 1 contract
First Closing. The obligation (A) On the basis of the Buyer hereunder to purchase the Debentures at the First Closing is representations, warranties and agreements and subject to the satisfactionterms and conditions set forth herein, at or before the Company agrees to sell to the several Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase, on the First Closing Date, from the Company, at a purchase price of each $[●] per share, representing an underwriting discount of 7.5% (the underwriting discount is reduced to 5.0% in connection with proceeds from any sales of the following conditions Offered Securities to certain of the Company’s existing shareholders, including entities affiliated with them (in addition to any other conditions precedent elsewhere in this Agreementthe “Company Introduced Investors”)), provided that these conditions are for the Buyer’s sole benefit and may be waived by number of Firm Securities set forth opposite the Buyer at any time name of such Underwriter in its sole discretion:
(a) The CompanySchedule A hereto. Furthermore, each Guarantor and/or the Chief Executive Officer (as applicable) shall have executed and delivered the Transaction Documents applicable Company agrees to issue to the First Closing and delivered the same to the Buyer.
(b) The representations and warranties of the Company 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 Representative on the First Closing Date as though made at that time a Representative’s Warrant exercisable for an aggregate of [●] Ordinary Shares (except for representations and warranties that speak as of a specific datethe “First Closing Representative’s Warrant”).
(B) 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 On the First Closing Date.
(c) The Buyer shall have received an opinion of counsel from counsel to , the Company will deliver the Firm Securities to or as instructed by the Representative for the accounts of the several Underwriters in a form satisfactory to the Buyer and its counsel.
(d) 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 Xxxxxxxxxx.xxx 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.
(e) The 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 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 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 reasonably acceptable to the Buyer.
(f) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(g) The Buyer shall have received copies Representative, against payment of UCC search reports, issued the purchase price by the Secretary of State Underwriters in Federal (same day) funds by wire transfer to an account at a bank acceptable to the Representative drawn to the order of the state of incorporation or residencyCompany, as applicable, and the Company will deliver the First Closing Representative’s Warrant to the Representative and the other items required pursuant to Section 6 on the First Closing Date (the “First Closing”). Upon satisfaction of the Company covenants and each Guarantorconditions set forth in this Agreement, dated such a date as is reasonably acceptable to Buyerthe First Closing shall occur at the offices of Xxxx Capital Partners, listing all effective financing statements which name the Company and each GuarantorLLC, under their present name and any previous names000 Xxx Xxxxxxxx Xxxxx, as debtorsXxxxx 000, together with copies of such financing statements.
(h) The Company and each Guarantor shall have executed Xxxxxxx Xxxxx, XX 00000, or such other agreements, certificates, confirmations or resolutions as the Buyer may reasonably require to consummate the transactions contemplated by this Agreement and the Transaction Documents, including a closing statement and joint disbursement instructions location as may be reasonably required mutually acceptable, or by Buyerremote electronic exchange, at 6:00 a.m. Pacific Time, on [●], 2024, or at such other time and date as the Representative and the Company determine pursuant to Rule 15c6-1 under the Exchange Act (the “First Closing Date”).
Appears in 1 contract
Samples: Underwriting Agreement (OMS Energy Technologies Inc.)
First Closing. The obligation first closing of the Buyer hereunder to sale and purchase of the Debentures shares of Series F Preferred Stock under this Agreement (the “First Closing”) shall take place at the First Closing is subject to offices of Fxxxx Hxxx llp, Seaport World Trade Center West, 100 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, simultaneously with the satisfaction, at or before execution and delivery of this Agreement. At the First Closing Date, of each of the following conditions (in addition to any other conditions precedent elsewhere in this Agreement), provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretionClosing:
(a) The Companythe Corporation shall execute and deliver to the Purchasers, and the Purchasers shall execute and deliver to the Corporation (by means of the financing signature page in the form attached hereto as Exhibit C (the “Purchaser Signature Page”), the Amended and Restated Registration Rights Agreement in the form attached hereto as Exhibit D (the “Registration Rights Agreement”);
(b) the Corporation shall execute and deliver to the Purchasers, and the Purchasers shall execute and deliver to the Corporation (by means of the Purchaser Signature Page), the Stockholders Agreement in the form attached hereto as Exhibit E (the “Stockholders Agreement” and, together with the Registration Rights Agreement, the “Related Agreements”);
(c) each Guarantor and/or of the Chief Executive Officer Trustees of Tufts University (as applicable“Tufts”), Wxxxxxx X. Xxxxxxxxxx (“Bachovchin”) and Stone Life Sciences Holdings, Ltd. (“Stone Life”) shall have executed and delivered the Transaction Documents applicable to the First Closing Related Agreements and delivered the same to the Buyer.
(b) The representations and warranties of the Company 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 other documents consistent 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 Buyer terms hereof as they shall have received an opinion of counsel from counsel to the Company in a form satisfactory to the Buyer and its counsel.reasonably request;
(d) The Buyer the Corporation shall have received evidence in a form satisfactory deliver 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 Xxxxxxxxxx.xxx 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.
(e) The 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 Company or Guarantor, in substance and form required by Buyer, which closing certificate shall include and attach as exhibits: Purchasers (i) a true copy of a long form 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 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.
(f) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(g) The Buyer shall have received copies of UCC search reports, issued Corporation certified by the Secretary of State of the state State of incorporation or residency, Delaware and (ii) a certificate as applicable, to the due qualification of the Company Corporation as a foreign corporation in The Commonwealth of Massachusetts certified by the Secretary of State of The Commonwealth of Massachusetts, each dated not more than forty-five (45) days prior to the First Closing;
(e) the Corporation shall deliver to the Purchasers the Certificate of Incorporation as in effect on the date hereof, certified by the Secretary of State of the State of Delaware as of the most recent practicable date;
(f) the Corporation shall deliver to the Purchasers a Certificate of the Secretary of the Corporation attesting as to (i) the Bylaws of the Corporation as in effect on the date hereof, (ii) the signatures and each Guarantortitles of the officers of the Corporation executing this Agreement, the Related Agreements or any certificate to be executed and delivered by the Corporation at the First Closing pursuant to this Section 2.1, and (iii) the resolutions of the Board of Directors and stockholders of the Corporation authorizing and approving the adoption of the Certificate of Incorporation, and all matters in connection with this Agreement and the Related Agreements, and the transactions contemplated hereby and thereby;
(g) Fxxxx Hxxx llp, counsel for the Corporation, shall deliver to the Purchasers an opinion, dated such a as of the date hereof, in substantially the form attached hereto 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.Exhibit F;
(h) the Corporation shall deliver to each Purchaser a certificate for the shares of Series F Preferred Stock purchased by such Purchaser at the First Closing, registered in the name of such Purchaser; and
(i) each Purchaser shall pay to the Corporation, by wire transfer of immediately available funds, by check, or by conversion of the outstanding principal amount and any accrued interest of any promissory note of the Corporation held by such Purchaser, as indicated on the Schedule of Purchasers, the aggregate purchase price for the shares of Series F Preferred Stock being purchased by such Purchaser at the First Closing. In the event that payment by a Purchaser is made, in whole or in part, by conversion of the outstanding principal amount and any accrued interest of any promissory note of the Corporation held by such Purchaser, then such Purchaser shall surrender to the Corporation for conversion at the First Closing any such promissory note. The Company First Closing shall not be deemed to occur, and all such payments by any Purchaser shall be deemed to be held in escrow, until each Guarantor shall have executed such other agreements, certificates, confirmations or resolutions as Purchaser listed on the Buyer may reasonably require Schedule of Purchasers has tendered to consummate the transactions contemplated by this Agreement and Corporation the Transaction Documents, including a closing statement and joint disbursement instructions as may be reasonably required by Buyerpayment indicated thereon.
Appears in 1 contract
Samples: Series F Preferred Stock Purchase Agreement (Kos Pharmaceuticals Inc)
First Closing. The obligation First Closing of the Buyer hereunder to purchase the Debentures this transaction shall be held at the First Closing is subject to the satisfactionoffices of Krys Boyle Freedman & Sawyer, at X.X., xx xxxx xxxxr pxxxx xs shall be mutually agreed upon, on August 23, 1999, or before as soon thereafter as practicable. At the First Closing Date, of each of the following conditions (in addition to any other conditions precedent elsewhere in this Agreement), provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretionClosing:
(a) The Company, each Guarantor and/or the Chief Executive Officer (as applicable) Selling Shareholders shall have deliver to ITHC stock certificates aggregating 12,602,431 shares of Common Stock of Silverthorne together with duly executed and delivered the Transaction Documents applicable to the First Closing and delivered the same to the Buyerstock powers with Medallion Guarantees.
(b) The representations ITHC shall deliver to Selling Shareholders cashiers checks totaling $190,000 payable to Selling Shareholders and warranties stock certificates representing an aggregate of the Company shall be true and correct in all material respects (except to the extent that any 300 shares 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 DateITHC common stock.
(c) The Buyer Silverthorne shall have received an opinion deliver to ITHC a stock certificate representing 29,242,953 shares of counsel from counsel Silverthorne restricted Common Stock registered in the name of ITHC; or this number may be reduced by 75,000 pursuant to the Company in a form satisfactory to the Buyer and its counselprovisions of Section 1.2 above.
(d) The Buyer ITHC shall have received evidence deliver to Silverthorne an assignment of all of its assets 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 Xxxxxxxxxx.xxx or forms approved 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 releasescounsel for Silverthorne.
(e) The Company and each Guarantor Silverthorne shall have executed and delivered to Buyer deliver a closing certificate, certified as true, complete and correct by an officer signed Consent and/or Minutes of the 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 acceptable to Buyer; and (iv) resolution of the Guarantor’s shareholders, Directors 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 Buyerthis transaction.
(f) No event ITHC shall have occurred which could reasonably deliver a signed Consent and/or Minutes of the Directors and Shareholders of ITHC approving this Agreement and each matter to be expected to have a Material Adverse Effectapproved by the Directors and Shareholders of ITHC.
(g) The Buyer Silverthorne shall have received copies deliver a certificate of UCC search reportsits President, issued by dated the Secretary of State closing date, certifying that all of the state of incorporation or residency, representations and warranties by Silverthorne are true and accurate as applicable, of the Company closing date, and each Guarantorthat all of the conditions to be performed or complied with by it, dated such a date as is reasonably acceptable to Buyerincluding the conditions set forth in Sections 7.2 through 7.6 hereof, 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 statementshave been met.
(h) The Company ITHC shall deliver a certificate of its President, dated the closing date, certifying that all of the representations and each Guarantor shall have executed such other agreementswarranties by ITHC are true and accurate as of the closing date, certificates, confirmations and that all of the conditions to be performed or resolutions as the Buyer may reasonably require to consummate the transactions contemplated complied with by this Agreement and the Transaction Documentsit, including a closing statement the conditions set forth in Sections 6.2 through 6.7 hereof, have been met.
(i) Silverthorne shall deliver to Mike Underwood and joint disbursement instructions Andy Ungar xxxxxxxxxxxx aggrexxxxxx 0,000,000 shares of Silverthorne restricted Common Stock as may be reasonably required by Buyerpartial payment of finders' fees.
Appears in 1 contract
Samples: Stock Purchase and Asset Acquisition Agreement (Silverthorne Production Co)
First Closing. The obligation of the Buyer hereunder to purchase the Debentures at the First Closing is subject to the satisfaction, at or before the First Closing Date, of each of the following conditions (in addition to any other conditions precedent elsewhere in this Agreement), provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion:
(a) The Company, each Guarantor and/or closing of the Chief Executive Officer (as applicable) shall have executed and delivered purchase by the Transaction Documents applicable to Purchasers of the First Closing Shares pursuant to this Agreement (the "First Closing") shall be held remotely via the exchange of final documents and delivered signature pages, on the same date of this Agreement, subject to the Buyerprior satisfaction or waiver of the applicable conditions set forth in Section 1.4 (other than those conditions that by their nature are to be satisfied at the First Closing, but subject to their satisfaction) (the date on which the First Closing actually occurs, the "First Closing Date").
(b) The representations and warranties of the Company shall be true and correct in all material respects (except Subject to the extent that any of such representations and warranties are already qualified as satisfaction or waiver on or prior 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 of the applicable conditions to the First Closing in Section 1.4, at that time the First Closing:
(except for representations and warranties that speak as of a specific date1) and the Company and each Guarantor shall have performedwill deliver, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement or cause to be performeddelivered, satisfied or complied with to the Purchasers (i) evidence reasonably satisfactory to the Purchasers of the issuance of the applicable First Closing Shares in the name of each Purchaser by book entry on the stock ledger of the Company (or, if the First Closing Shares are to be represented in certificated form, a certificate representing the First Closing Shares), (ii) a counterpart to the Stockholders Agreement, in the form attached hereto as Exhibit B (the "Stockholders Agreement"), executed by the Company, (iii) a counterpart to the Registration Rights Agreement, in the form attached hereto as Exhibit C (the "Registration Rights Agreement"), executed by the Company, and (iv) all other documents, instruments and writings required to be delivered by the Company and each Guarantor to the Purchasers at or prior to the First Closing pursuant to this Agreement; and
(2) each Purchaser will severally deliver or cause to be delivered
(i) to a bank account designated by the Company in writing at least two (2) business days prior to the First Closing Date, such Purchaser's respective portion of the First Closing Purchase Price as set forth opposite such Purchaser's name on Schedule I hereto by wire transfer of immediately available funds, (ii) a counterpart to the Stockholders Agreement executed by the parties thereto, other than the Company, (iii) a counterpart to the Registration Rights Agreement executed by such Purchaser and (iv) all other documents, instruments and writings required to be delivered by such Purchaser to the Company at or prior to the First Closing pursuant to this Agreement.
(c) The Buyer shall have received an opinion of counsel from counsel All deliveries at the First Closing will be deemed to the Company in a form satisfactory to the Buyer and its counseloccur simultaneously.
(d) 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 Xxxxxxxxxx.xxx 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.
(e) The 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 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 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.
(f) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(g) 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.
(h) The Company and each Guarantor shall have executed such other agreements, certificates, confirmations or resolutions as the Buyer may reasonably require to consummate the transactions contemplated by this Agreement and the Transaction Documents, including a closing statement and joint disbursement instructions as may be reasonably required by Buyer.
Appears in 1 contract
Samples: Investment Agreement (Viad Corp)
