Agreement to Subscribe 1.1 Purchase and Issuance of the Private Placement Units.
(a) Upon the terms and subject to the conditions of this Agreement, the Subscriber hereby agrees to purchase from the Company, and the Company hereby agrees to sell to the Subscriber, on the Initial Closing Date (as defined below) 594,076 Private Placement Units in consideration of the payment of the Purchase Price. On the Initial Closing Date, the Company shall, at its option, deliver to the Subscriber the certificates representing the Securities purchased or effect such delivery in book-entry form.
(a) On the date of the consummation of the closing of the over-allotment option, if any, in connection with the IPO or on such earlier time and date as may be mutually agreed by the Subscriber and the Company (an “Over-allotment Closing Date,” and each Over-allotment Closing Date (if any) and the Initial Closing Date, a “Closing Date”), the Company shall issue and sell to the Subscriber, and the Subscriber shall purchase from the Company, up to 63,424 additional Private Placement Units (or, to the extent the over-allotment option is not exercised in full, a lesser number of Private Placement Units in proportion to the amount of the over-allotment option that is then exercised) at a price of $10.00 per Private Placement Unit for an aggregate purchase price of up to $634,240 (if the over-allotment option is exercised in full) (such amount, the “Over-allotment Purchase Price”). The Subscriber shall pay the Over-allotment Purchase Price by wire transfer of immediately available funds or by such other method as may be reasonably acceptable to the Company, to the trust account (the “Trust Account”) at a financial institution to be chosen by the Company, maintained by Continental Stock Transfer & Trust Company, acting as trustee (“Continental”), on or prior to the Over-allotment Closing Date. On the Over-allotment Closing Date, upon the payment by the Subscriber of the Over-allotment Purchase Price, the Company shall, at its option, deliver a certificate evidencing the Private Placement Units purchased by the Subscriber on such date duly registered in the Subscriber’s name to the Subscriber, or effect such delivery in book-entry form.
Agreement to Subscribe Purchase Price (i) Seller and Buyer are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(2) of the Act and/or Rule 506 under Regulation D ("Regulation D") as promulgated by the United States Securities and Exchange Commission (the "Commission") under the Act; and
(ii) Buyer hereby subscribes for up to 3,000 shares of Preferred at a value of $1,000.00 per each share of Preferred for an aggregate amount of $3,000,000.00USD which Preferred shall contain such terms, provisions, and conditions pursuant to the Certificate of Designation attached as Exhibit A to and forming an integral part of this Agreement. The Buyer shall pay to the Company $3,000,000.00 for 3,000 shares of Preferred on the date the Preferred is duly executed by the Company and received in escrow by the Buyer's counsel (the "Closing Date").
(iii) The Company shall grant to the Buyer the following Warrants ("Warrants") to purchase up to an aggregate of 150,000 Shares of the Company, with each Warrant entitling the Buyer to purchase one Share at a warrant exercise price of Two Dollars and 50/100 ($2.50) per Share expiring three (3) years after the Closing Date and Warrants to purchase up to an aggregate of 200,000 shares of the Company with each Warrant entitling the Buyer to purchase one Share at a warrant exercise price of One Dollar and 875/1000 ($1.875) per Share expiring three (3) years after the Closing Date;
(a) On the Closing Date and upon receipt by the Company of the Three Million and No/100 Dollars ($3,000,000) for the 3,000 Shares of Preferred, the Company shall issue to the Buyer a Warrant to purchase up to One Hundred and Fifty Thousand (150,000) Shares at an exercise price of Two Dollars and 50/100 ($2.50) per Share, and, the Company shall issue to the Buyer a Warrant to purchase up to Two Hundred Thousand (200,000) Shares at an exercise price of One Dollar and 875/1000 ($1.875) per Share with the term of each Warrant being for a period of three (3) years from the Closing date; and Each Warrant shall be substantially in the form attached hereto as Exhibit B.
No obligation to monitor No Finance Party is bound to monitor or verify the utilisation of the Facility.
No Obligation to Register The Company shall be under no obligation to register the Restricted Shares pursuant to the Securities Act or any other federal or state securities laws.
OBLIGATION TO SUPPORT The parties agree that subsequent to the execution of this Memorandum of Understanding and during the period of time said Memorandum is pending before the Board of Supervisors for action, neither SEIU Local 721, nor Management, nor their authorized representatives, will appear before the Board of Supervisors or meet with members of the Board of Supervisors individually to advocate any amendment, addition or deletion to the terms and conditions of this Memorandum of Understanding. It is further understood that this Article shall not preclude the parties from appearing before the Board of Supervisors nor meeting with individual members of the Board of Supervisors to advocate or urge the adoption and approval of this Memorandum of Understanding in its entirety.
No Obligation to Act The Agent shall not be obligated to do any of the acts or to exercise any of the powers authorized by Section 10.1 herein, but if the Agent elects to do any such act or to exercise any of such powers, it shall not be accountable for more than it actually receives as a result of such exercise of power, and shall not be responsible to the Borrower for any act or omission to act except for any act or omission to act as to which there is a final determination made in a judicial proceeding (in which proceeding the Agent has had an opportunity to be heard) which determination includes a specific finding that the subject act or omission to act had been grossly negligent or in actual bad faith.
Conditions to Each Party’s Obligation to Effect the Closing The respective obligation of each party to effect the Closing shall be subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions:
No Obligation to Mitigate Executive shall not be required to seek other employment or otherwise to mitigate Executive's damages upon any termination of employment; provided, however, that, to the extent Executive receives from a subsequent employer health or other insurance benefits that are substantially similar to the benefits referred to in Section 5(b) hereof, any such benefits to be provided by the Company to Executive following the Term shall be correspondingly reduced.
CONDITIONS TO EACH BUYER’S OBLIGATION TO PURCHASE The obligation of each Buyer hereunder to purchase the Notes and Warrants at the Closing is subject to the satisfaction, at or before the Closing Date of each of the following conditions, provided that these conditions are for such Buyer’s sole benefit and may be waived by such Buyer at any time in its sole discretion:
a. The Company shall have executed this Agreement and the Registration Rights Agreement, and delivered the same to the Buyer.
b. The Company shall have delivered to such Buyer duly executed Notes (in such denominations as the Buyer shall request) and Warrants in accordance with Section 1(b) above.
c. The Irrevocable Transfer Agent Instructions, in form and substance satisfactory to a majority-in-interest of the Buyers, shall have been delivered to and acknowledged in writing by the Company’s Transfer Agent.
d. The representations and warranties of the Company shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at such time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Buyer shall have received a certificate or certificates, executed by the chief executive officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, but not limited to certificates with respect to the Company’s Certificate of Incorporation, By-laws and Board of Directors’ resolutions relating to the transactions contemplated hereby.
e. No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement.
f. No event shall have occurred which could reasonably be expected to have a Material Adverse Effect on the Company.
g. The Conversion Shares and Warrant Shares shall have been authorized for quotation on the OTCBB and trading in the Common Stock on the OTCBB shall not have been suspended by the SEC or the OTCBB.
h. The Buyer shall have received an opinion of the Company’s counsel, dated as of the Closing Date, in form, scope and substance reasonably satisfactory to the Buyer and in substantially the same form as Exhibit “D” attached hereto.
i. The Buyer shall have received an officer’s certificate described in Section 3(c) above, dated as of the Closing Date.
Right to Sublicense Company shall have the right to sublicense to any third party the rights conferred upon Company under this Agreement, subject to the following conditions:
2.4.1 Wistar shall have the right to approve in advance any Sublicensee if Company is not selling Licensed Product at the time of sublicensing negotiations, provided that such approval shall not be unreasonably withheld; and further provided, however, that such approval shall be deemed to have been given if Wistar does not object to the proposed Sublicensee within [**] ([**]) business days after Company notifies Wistar in writing of the name of such Sublicensee.
2.4.2 Any Sublicense shall be in writing, shall be consistent with all of the terms and conditions of this Agreement, and shall incorporate terms and conditions sufficient to enable Company to comply with this Agreement. Without limiting the foregoing, each Sublicense shall (i) provide that in the event Sublicensee brings a Patent Challenge against Wistar or assists another party in bringing a Patent Challenge against Wistar (except as required under a court order or subpoena or if legally compelled by an administrative agency) then Company may terminate the Sublicense, (ii) require Sublicensee to indemnify, hold harmless and defend Wistar and carry insurance under the same terms set forth in Article 6 below, and (iii)state that Wistar is an intended third party beneficiary of such Sublicense, including for the purpose of enforcing such termination, indemnification, and insurance provisions.
2.4.3 No Sublicensee shall be permitted to sublicense further any of its rights under any Sublicense. Each Sublicense shall contain an agreement and acknowledgment by the Sublicensee that such Sublicense and the Sublicensee are subject to the terms and conditions of the license granted to Company under this Agreement.
2.4.4 Notwithstanding any Sublicense, Company shall remain primarily liable to Wistar for all of Company’s duties and obligations contained in this Agreement, and any act or omission of a Sublicensee which would be a breach of this Agreement if performed by Company shall be deemed to be a breach by Company of this Agreement. Wistar Reference No. LIC15-35 Wistar/OncoCyte Certain information has been omitted under a request for confidential treatment, and the omitted information has been filed with the Commission. Confidential portions are marked [**].
2.4.5 If Wistar has a claim arising under this Agreement against a Sublicensee, Wistar may seek a remedy directly against Company and may, but is not required to, seek a remedy against the Sublicensee.
2.4.6 If Company becomes subject to a Bankruptcy Event, all payments then or thereafter due and owing to Company from its Sublicensees shall thereupon, and without any notice from Wistar to any such Sublicensee, become payable directly to Wistar for the account of Company; provided, however, that Wistar shall remit to Company any amount by which such payments exceed the amounts owed by Company to Wistar.
2.4.7 Company shall furnish Wistar with a fully executed copy of any Sublicense agreement within thirty (30) days after execution without redaction.
2.4.8 Any sublicense that is not in compliance with all of the provisions of this Section 2.4 shall be void.
