Subsequent Closing The sale, contribution and transfer of the Drag-Along Shares by the Drag-Along Sellers to Purchaser (the "Subsequent Closing") shall take place at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx, 00 xxx xx Xxxxxxxx Xxxxx-Xxxxxx, 00000 Xxxxx, at 10:00 a.m. and at the offices of Lexence N.V., Xxxxx Van Anrooystraat, 1076 AD Amsterdam; The Netherlands, as soon as possible after the Initial Closing. In view of the Subsequent Closing, Purchaser undertakes to implement the drag-along provided in the Former Shareholders Agreement.
(a) At the Subsequent Closing, each of the Drag-Along Sellers shall deliver to Purchaser:
(i) a joinder to this Agreement as a Drag-Along Seller;
(ii) a transfer order (ordre de mouvement) for the transfer to Purchaser of the Shares duly executed by such Drag-Along Seller in favor of Purchaser;
(iii) a copy of a confirmation letter from such Drag-Along Seller, sent by facsimile to the Notary, that (i) the Drag-Along Shares of such Drag-Along Seller have been transferred and (ii) the Deed of Issuance may be executed;
(iv) a power of attorney in favor of Purchaser authorizing Purchaser to terminate the Former Shareholders' Agreement and all ancillary agreements relating thereto as of the Subsequent Closing Date;
(v) the New Shareholders' Agreement from each of the Drag-Along Sellers; and
(vi) all other previously undelivered documents required to be delivered by each of the Drag-Along Sellers, to Purchaser at or prior to the Subsequent Closing in connection with the Transactions.
(b) At the Subsequent Closing, Purchaser shall deliver to each of the Drag-Along Sellers:
(i) the Per Share Amount due to the Drag-Along Sellers in respect of the Drag-Along Shares;
Second Closing (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d), the second closing (the “Second Closing”) shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), at the offices of Malizia Spidi & Fixxx, XX located xx 0027 25th Street, X.X., Xxxxxxxxxx, X.X. 00000, xx xxxx xxxxx xxte or location as agreed by the parties in writing. The date of the Second Closing is referred to as the “Second Closing Date.”
(2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing an aggregate 22,458 shares of Series B Preferred Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the Second Closing, against payment by the Investors of $22,458,000 (the “Second Purchase Price” and together with the Initial Purchase Price, the “Purchase Price”) by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the “Conversion Shares”) would cause an Investor or its Affiliates to be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that such Investor will not be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.
Initial Closing In consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.
First Closing The obligations of the Investor and the Corporation to complete the purchase and sale of Debentures at the First Closing are conditional upon the satisfaction of, or compliance with, or waived (to the extent waivable) by the party who benefits from the condition, the following conditions (the First Closing Conditions):
(a) the Investor duly completes, executes and returns to the Corporation this Subscription Agreement;
(b) at the close of business on the trading day before the First Closing Date, the Corporation shall have delivered to the Investor written notice of the Commitment Warrant Exercise Price and, based on same, the number of Commitment Warrants to be issued;
(c) at least two (2) trading days before the First Closing Date, the Corporation shall have delivered to the Investor written notice of its intention to issue the applicable Securities as listed in Section 2.1 for the applicable Closing (the First Closing Notice);
(d) before or on the First Closing Date, the Investor shall have delivered to the Corporation written notice of the outstanding Transaction Expenses;
(e) at least two (2) business days before the First Closing Date, the Corporation shall have delivered to the Investor wire transfer instructions for the payment of this Subscription Amount;
(f) all necessary regulatory and CSE approvals (if any) required for the entering into this Subscription Agreement and the completion of the transactions contemplated under this Subscription Agreement shall have been obtained prior to the First Closing;
(g) before or on the First Closing Date, the Corporation shall have posted CSE Form 9 and CSE Form 6 on the CSE's website;
(h) before the First Closing Date, the Share Lending Agreement shall have been entered into with respect to the lending of 600,000 freely tradeable Common Shares;
(i) before the First Closing Date, 600,000 freely tradeable Common Shares have been delivered to the Investor pursuant to the Share Lending Agreement;
(j) delivery of a legal opinion dated the First Closing Date from the Corporation’s counsel as to the conditions set out in items (f) above, in form and substance acceptable to the Investor and its legal counsel, acting reasonably;
(k) (i) the representations, warranties and certifications of the Investor addressed to the Corporation in this Subscription Agreement, including in any other document delivered to the Corporation 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 Investor (as applicable to the First Closing) in this Subscription Agreement, including 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;
(l) (i) the representations, warranties and certifications of the Corporation addressed to the Investor in this Subscription Agreement, including 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 Subscription Agreement, including in any other document delivered to the Investor in connection with the Investment, shall have been complied with or performed by the Corporation, in all material respects, on or before the First Closing Date;
(m) no order ceasing or suspending trading in the Common Shares on any stock exchange shall have been issued and no proceeding for such purposes shall be pending or threatened;
(n) all documents required pursuant to this Agreement, including without limitation, the Debentures to be issued by the Corporation, the Warrants to be issued by the Corporation, in each case in form and substance satisfactory to the Investor, acting reasonably;
(o) delivery of an officer's certificate by the Corporation certifying (i) constating documents, (ii) authorizing board resolutions, (iii) incumbency, and (iv) that the condition in 3.1
Additional Closing On a Trading Day that (A) is on or before the Additional Closing Deadline, (B) follows the date on which the conditions set forth in Section 2.3(c) shall have been satisfied or duly waived and (C) is proposed by the Company and reasonably acceptable to each Initial Purchaser (the “Additional Closing Date”), upon the terms and subject to the conditions set forth herein, the Company may request to sell additional Notes (the “Additional Notes”) having an aggregate principal amount not to exceed $12,222,222.00 and for a Purchase Price that reflects at least the same original issue discount shown on Schedule I for the Initial Notes, by delivering to the Collateral Agent a notice specifying the aggregate Initial Principal Amount requested, the Purchase Price and the proposed Additional Closing Date, as well as certifying that the conditions set forth in Section 2.3(c) (other than the deliveries described in Section 2.2(c)) are satisfied (or duly waived) as of the date of such notice (the “Additional Closing Notice”). The Collateral Agent shall forward such notice to each Purchaser and, upon receipt, each such Purchaser may, in its sole discretion, decide to purchase its Pro Rata Portion of the Additional Notes by notifying the Collateral Agent within five (5) Business Days of receipt of such Additional Closing Notice and indicating in its notice whether such Purchaser is interested in purchasing Additional Notes in excess of its allocated Pro Rata Portion if available and, if so, its maximum additional Purchase Price. Should some Purchasers decline to purchase their Pro Rata Portion of the Additional Notes, the Collateral Agent may, in its sole discretion, reallocate such Pro Rata Portion to Purchasers having indicated such an interest in purchasing Additional Notes in excess of their allocation. Should there not be enough such Purchasers to purchase such Pro Rata Portion, the Collateral Agent may, in its sole discretion, offer such Pro Rata Portion to third parties. Each such third party that agrees to purchase Additional Notes shall execute and deliver to the Collateral Agent a Joinder Agreement and, whether or not such Joinder Agreement shall be acknowledged by the Company, shall thereafter for all purposes be a party hereto and have the same rights, benefits and obligations as a Purchaser party hereto on the Additional Closing Date. Notwithstanding the foregoing so long as the conditions set forth in clauses (A), (B) and (C) of the first sentence of this Section 2.1(a)(ii) are then satisfied, the Purchasers may require that the Company sell to them Notes having an aggregate principal amount of $4,444,444.00 and the Company may require that the Purchasers purchase Notes as follows:
(1) if (x) a Registration Statement shall have been filed with the SEC in accordance with the Registration Rights Agreement including for registration therein all of the Registrable Securities (as defined in the Registration Rights Agreement) issuable in respect of the Initial Notes, and (y) 15,000,000 shares of the Common Stock in the aggregate shall have traded on the Principal Trading Market since the Business Combination, the Company may require that the Purchasers purchase Notes having an aggregate principal amount of $2,222,222.00 in respect of which the aggregate subscription amount shall be $2,000,000 (the “Second Notes Purchase”); and
(2) if (x) the Registration Statement filed with the SEC in accordance with the Registration Rights Agreement including for registration therein all of the Registrable Securities (as defined in the Registration Rights Agreement) issuable in respect of the Initial Notes shall have been declared effective, (y) $35,000,000 of dollar volume in the aggregate of shares of Common Stock shall have traded on the Principal Trading Market since the Second Notes Purchase and (z) the Common Stock shall have traded on the Principal Trading Market at a trading price of no less than $4.00 for the five (5) Trading Days preceding such purchase, the Company may require that the Purchasers purchase Notes having an aggregate principal amount of $5,555,555.00 in respect of which the aggregate subscription amount shall be $5,000,000.00.
Subsequent Closings Subject to the satisfaction (or waiver by the Agent in its sole discretion) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.
Closing; Closing Date Closing" and "Closing Date" have the meanings set forth in Section 5.3.
Third Closing Subject to the terms hereof and Section 7 and ------------- notwithstanding any provision of the September Purchase Agreement to the contrary, each Lender and Zoltek agree that the Third Closing Date shall occur on the Business Day following the date of the Nasdaq Approval (as defined below).
2.1. In connection with the Third Closing, Zoltek shall issue to each Lender (i) a note in the form of Exhibit B-1 hereto (the "April ----------- Notes I"), registered in the name of such Lender in the aggregate principal amount of the purchase price indicated opposite such Lender's name of Schedule A hereto, and (ii) a warrant in the form ---------- of Exhibit C-1 hereto (the "April Warrants I"), registered in the ----------- name of such Lender pursuant to which such Lender shall have the right to acquire the number of shares of Common Stock indicated opposite such Lender's name on Schedule A hereto under the heading ---------- "April Warrants I-Warrant Shares". The aggregate principal amount of April Notes I issued to the Lenders under the Third Closing shall be $20,000,000. The Conversion Price of the April I Notes shall be $25.51; provided, however, that if the press release -------- ------- required under Section 8.4 has not been issued prior to 11am Eastern time, the Conversion Price of the April I Notes shall be the lesser of (i) $25.51 and (ii) the last bid price at 11:01 am as reported on Bloomberg.
2.2. Zoltek shall deliver to each Lender the remaining closing deliveries under Section 2.8 of the September Purchase Agreement and each Lender shall deliver to Zoltek, in immediately available funds by wire transfer to an account designed by Zoltek, its respective purchase price.
2.3. For the purposes of this Amendment, the term "Nasdaq Approval" shall mean the date in which the Company receives approval from Nasdaq to issue all of the securities and the underlying shares of Common Stock contemplated by this Amendment. Zoltek shall use its best efforts to obtain the Nasdaq Approval as promptly as possible. To the extent Nasdaq requires Zoltek to obtain the consent of its shareholders, Zoltek hereby agrees that the provisions of Section 5(b)(iii) of the April I Notes shall apply and are hereby incorporated into this Amendment.