Issuance of New Notes Whenever the Company is required to issue a new Note pursuant to the terms hereof, such new Note (i) shall be of like tenor with this Note, (ii) shall represent, as indicated on the face of such new Note, the Principal remaining outstanding (or in the case of a new Note being issued pursuant to Section 5(4)(a) or Section 5(4)(c), the Principal designated by the Holder which, when added to the Principal represented by the other new Note issued in connection with such issuance, does not exceed the Principal remaining outstanding under this Note immediately prior to such issuance of new Note), (iii) shall have an issuance date, as indicated on the face of such new Note, which is the same as the Issuance Date of this Note, (iv) shall have the same rights and conditions as this Note, and (v) shall represent accrued and unpaid Interest from the Issuance Date.
Sale of New Securities For so long as the Focus Investor, together with its Affiliates, owns 10% or more of all of the outstanding Common Shares (counting for such purposes all Common Shares into or for which the securities of the Company owned by the Investor and its Affiliates are directly or indirectly convertible or exercisable) (before giving effect to any issuances triggering provisions of this Section) if, at any time after the date hereof and on or before the fifth anniversary of the date hereof, the Company makes any nonpublic offering or sale of any equity security (including Common Shares, preferred shares or restricted shares), or any securities, options or debt that is convertible or exchangeable into equity or that includes an equity component (such as an “equity kicker”) (any such security, a “New Security”) (other than (i) any Common Shares or other securities issuable upon the exercise or conversion of any securities of the Company issued or agreed to be issued as of the date hereof; (ii) pursuant to the granting or exercise of employee share options or other share incentives pursuant to the Company’s share incentive plans approved by the Board of Directors or the issuance of shares pursuant to the Company’s employee share purchase plan approved by the Board of Directors or similar plan where shares are being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation; or (iii) issuances of shares or other securities as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction), then, to the extent not prohibited, not restricted, and not requiring any shareholders’ approval by any applicable law or by obligations pursuant to any listing agreement with any securities exchange or any securities exchange regulation, the Focus Investor shall be afforded the opportunity to acquire from the Company for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, to the extent permitted by law and the Articles of Association, the Investor may elect to receive such securities in nonvoting form, convertible into voting securities in a widely dispersed or public offering) as such securities are proposed to be offered to others, up to the amount of New Securities in the aggregate required to enable it to maintain its interest in the Purchased Shares proportionate to the total number of Common Shares of the Company either outstanding or issued pursuant to currently exercisable rights of Common Share-equivalent interest in the Company immediately prior to any such issuance of New Securities; provided, that, except in the case of any transfer of Common Shares to an Affiliate of the Focus Investor, who will from that date forward assume jointly with the Focus Investor all obligations under the Transaction Documents, such right to acquire such securities is not transferable. The amount of New Securities that the Focus Investor shall be entitled to purchase in the aggregate shall be determined by multiplying (x) the total number or principal amount of such offered New Securities by (y) a fraction, the numerator of which is the number of Purchased Shares held by the Focus Investor, and the denominator of which is the number of Common Shares outstanding immediately prior to the issuance of such New Securities.
Issuance of New Warrants Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant (i) shall be of like tenor with this Warrant, (ii) shall represent, as indicated on the face of such new Warrant, the right to purchase the Warrant Shares then underlying this Warrant (or in the case of a new Warrant being issued pursuant to Section 7(a) or Section 7(c), the Warrant Shares designated by the Holder which, when added to the number of shares of Common Stock underlying the other new Warrants issued in connection with such issuance, does not exceed the number of Warrant Shares then underlying this Warrant), (iii) shall have an issuance date, as indicated on the face of such new Warrant which is the same as the Issuance Date, and (iv) shall have the same rights and conditions as this Warrant.
Purchase and Sale of Notes (a) Subject to the terms and conditions of this Agreement, each Purchaser agrees to purchase and the Company agrees to sell and issue to each Purchaser at the Closing (as defined below) the principal amount of Notes of the Company as is set forth opposite such Purchaser’s name on such Purchaser’s signature page hereto. The Notes issued to the Purchasers pursuant to this Agreement (including any notes issued at the Initial Closing and any Additional Notes, as defined below) shall be referred to in this Agreement as the “Notes.” Each Note shall be in the form attached hereto as Exhibit A hereto.
(b) The initial purchase and sale of the Notes shall take place remotely via the electronic exchange of documents and signatures on the Business Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i) the Purchasers’ obligation to pay the Subscription Amount at such Closing, and (ii) the Company’s obligations to deliver the Securities to be issued and sold at such Closing, in each case, have been satisfied or waived, but in no event later than the tenth Business Day following the date hereof (such initial closing is referred to herein as the “Initial Closing”).
(c) After the Initial Closing, the Company may sell, in one or more closings and on the terms and conditions contained in this Agreement, Notes in the aggregate principal amount of up to $6,000,000 (collectively, the “Additional Notes”), to one or more purchasers (the “Additional Purchasers”) reasonably acceptable to the Company, provided that (A) such subsequent sale is consummated prior to October 1, 2020 (the “Termination Date”), or such date as the Company and a Majority in Interest may mutually agree upon; and (B) each Additional Purchaser shall become a party to the Transaction Documents by executing and delivering a counterpart signature page to each of the Transaction Documents. Signature pages shall be added to this Agreement to reflect the amount of Additional Notes purchased at each such closing (an “Additional Closing” and together with the Initial Closing, each, a “Closing”) and the parties purchasing such Additional Notes.
(d) At each Closing, the payment by a Purchaser of such Purchaser’s Subscription Amount may be made via wire transfer or a certified check in immediately available funds to the Company.
Issuance of New Note Upon any partial conversion of this Note, a new Note containing the same date and provisions of this Note shall, at the request of the Holder, be issued by the Borrower to the Holder for the principal balance of this Note and interest which shall not have been converted or paid. The Borrower will pay no costs, fees or any other consideration to the Holder for the production and issuance of a new Note.
Purchase and Sale of Note Subject to the terms and conditions of this Agreement, the Seller hereby agrees to issue to the Purchaser and the Purchaser hereby agrees to acquire from the Seller a certain Convertible Promissory Note (“Note”) in the aggregate principal amount of Fifty Thousand Dollars ($50,000), a copy of which is attached hereto as Exhibit “A”.
Purchase and Sale of the Securities (a) The Company agrees to issue and sell the Securities to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite such Underwriter’s name in Schedule 1 hereto at a price equal to 99.002% of the principal amount thereof plus accrued interest, if any, from the Closing Date (as defined below). The Company will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.
(b) The Company understands that the Underwriters intend to make a public offering of the Securities as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Securities on the terms set forth in the Time of Sale Information. The Company acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Securities will be made at the offices of Xxxxx Xxxxx LLP at 10:00 A.M., New York City time, on May 17, 2018, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date”.
(d) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to the Representatives against delivery to the nominee of The Depository Trust Company (“DTC”), for the account of the Underwriters, of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Global Note will be made available for inspection by the Representatives not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
(e) The Company acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Representatives or any Underwriter of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Underwriter, as the case may be, and shall not be on behalf of the Company or any other person.
Purchase and Sale of Notes and Warrants (a) Upon the following terms and conditions, the Company shall issue and sell to the Purchasers, and the Purchasers shall purchase (in the amounts set forth as Exhibit A hereto) from the Company, secured convertible demand promissory notes in the aggregate principal amount of up to Eight Million Dollars ($8,000,000), convertible into shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), in substantially the form attached hereto as Exhibit B (the “Notes”). The Company and the Purchasers are executing and delivering this Agreement in accordance with and in reliance upon the exemption from securities registration afforded by Section 4(2) of the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), including Regulation D (“Regulation D”), and/or upon such other exemption from the registration requirements of the Securities Act as may be available with respect to any or all of the investments to be made hereunder.
(b) Upon the following terms and conditions and for no additional consideration, each of the Purchasers shall be issued (i) Series A Warrants, in substantially the form attached hereto as Exhibit C-1 (the “Series A Warrants”), to purchase the number of shares of Common Stock equal to fifty percent (50%) of the number of Conversion Shares (as defined in Section 1.3 below) issuable upon conversion of the Notes purchased by each Purchaser pursuant to the terms of this Agreement, as set forth opposite such Purchaser’s name on Exhibit A hereto, (ii) Series J Warrants, in substantially the form attached hereto as Exhibit C-2 (the “Series J Warrants”), to purchase the number of shares of Common Stock equal to one hundred percent (100%) of the number of Conversion Shares issuable upon conversion of the Notes purchased by each Purchaser, provided that such Purchaser purchases Notes for a purchase price equal to or greater than Two Million Dollars ($2,000,000) pursuant to the terms of this Agreement, as set forth opposite such Purchaser’s name on Exhibit A hereto, and (iii) Series B Warrants, in substantially the form attached hereto as Exhibit C-3 (the “Series B Warrants” and, together with the Series A Warrants and the Series J Warrants, the “Warrants”), to purchase the number of shares of Common Stock equal to fifty percent (50%) of the number of Conversion Shares issuable upon conversion of the Notes purchased by each Purchaser pursuant to the terms of this Agreement, as set forth opposite such Purchaser’s name on Exhibit A hereto. The Warrants shall expire five (5) years following the Closing Date, except for the Series J Warrants, which shall expire nine (9) months following the Closing Date. Each of the Warrants shall have an exercise price per share equal to the Warrant Price (as defined in the applicable Warrant).
Purchase and Sale of the Notes (a) The Issuer agrees to issue and sell the Notes to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Issuer the respective principal amount of Notes set forth opposite such Underwriter’s name in Schedule 1 hereto at a price equal to [ ]% of the principal amount of the Notes, plus accrued interest, if any, from [ ], [ ], to the Closing Date (as defined below).
(b) The Issuer acknowledges and agrees that the Underwriters may offer and sell Notes to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Notes purchased by it to or through any Underwriter.
(c) The Issuer understands that the Underwriters intend to make a public offering of the Notes as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Notes on the terms set forth in the Time of Sale Information.
(d) The Issuer and each Guarantor acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Issuer and each Guarantor with respect to the offering of the Notes contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Issuer, any Guarantor or any other person. Additionally, neither the Representatives nor any other Underwriter are advising the Issuer, any Guarantor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuer and each Guarantor shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representatives nor any other Underwriter shall have any responsibility or liability to the Issuer or any Guarantor with respect thereto. Any review by the Representatives or any Underwriter of the Issuer, any Guarantor, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Underwriter, as the case may be, and shall not be on behalf of the Issuer, any Guarantor or any other person. The Issuer agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Issuer, in connection with such transactions or the process leading thereto.
Purchase and Sale of the Units At the Closing, upon the terms and subject to the conditions set forth in this Agreement, the Seller shall sell, assign, transfer, deliver and convey to the Buyer, free and clear of any Liens, and the Buyer shall purchase, accept and acquire from the Seller, the Units.
