Option Closing To the extent the Option is exercised, delivery of the Option Securities against payment by the Underwriters (in the manner and at the location specified above) shall take place at the time and date (which may be the Closing Date, but not earlier than the Closing Date) specified in the Option Notice.
The Optional Shares; Option Closing Date In addition, on the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to an aggregate of [•] Optional Shares from the Company at the purchase price per share to be paid by the Underwriters for the Firm Shares. The option granted hereunder may be exercised at any time and from time to time in whole or in part upon notice by the Representatives to the Company, which notice may be given at any time within 30 days from the date of this Agreement. Such notice shall set forth (i) the aggregate number of Optional Shares as to which the Underwriters are exercising the option and (ii) the time, date and place at which the Optional Shares will be delivered (which time and date may be simultaneous with, but not earlier than, the First Closing Date; and in the event that such time and date are simultaneous with the First Closing Date, the term “First Closing Date” shall refer to the time and date of delivery of the Firm Shares and such Optional Shares). Any such time and date of delivery, if subsequent to the First Closing Date, is called an “Option Closing Date,” and shall be determined by the Representatives and shall not be earlier than two or later than five full business days after delivery of such notice of exercise. If any Optional Shares are to be purchased, each Underwriter agrees, severally and not jointly, to purchase the number of Optional Shares (subject to such adjustments to eliminate fractional shares as the Representatives may determine) that bears the same proportion to the total number of Optional Shares to be purchased as the number of Firm Shares set forth on Schedule A opposite the name of such Underwriter bears to the total number of Firm Shares. The Representatives may cancel the option at any time prior to its expiration by giving written notice of such cancellation to the Company.
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.
Third Closing At any time sixty one (61) to ninety (90) days following the Second Closing Date, subject to the mutual agreement of the Buyer and the Company, for the “Third Closing Date” and subject to satisfaction of the conditions set forth in Sections 7 and 8, (A) the Company shall deliver to the Buyer the following: (i) the Third Debenture; (ii) an amendment to the Transfer Agent Instruction Letter instructing the Transfer Agent to reserve that number of shares of Common Stock as is required under Section 4(g) hereof, if necessary; and (iii) an officer’s certificate of the Company confirming, as of the Third Closing Date, the accuracy of the Company’s representations and warranties contained herein and updating Schedules 3(b), 3(c) and 3(k) as of the Third Closing Date, and (B) the Buyer shall deliver to the Company the Third Purchase Price.
Second Closing The obligation of the Company to issue, sell and deliver the Series B Preferred Shares at the Second Closing is subject to the fulfillment to the reasonable satisfaction of the Company at or prior to the Second Closing of the following conditions:
(a) The Second Closing Investors shall have delivered the Second Purchase Price in accordance with Section 2.4(b);
(b) Each Second Closing Investor shall have delivered its executed counterpart signature page to this Agreement;
(c) The Amended and Restated Shareholders Agreement, duly executed by the New Series B Investors and the holders of at least a majority of the outstanding shares of Common Stock on a fully-diluted basis, including a majority of the Series A Preferred Stock voting as a separate class and on a fully-diluted and as converted basis;
(d) The First Amendment to Registration Rights Agreement, duly executed by a majority of the holders of Registrable Securities (as defined the Original Registration Rights Agreement);
(e) Each of the representations and warranties of the Investors contained in Article VIII shall be true, correct and complete in all material respects on and as of the Second Closing Date as though then made, except for such representations and warranties which expressly speak as of a certain date, which representations and warranties shall be true, correct and complete in all material respects as of the date specified.
(f) Section 7.4(a) of the Series A Preferred Stock Purchase Agreement shall be amended to read in its entirety as follows:
(a) (i) As of the First Closing, the authorized capital stock of the Company consisted solely of (1) ten million (10,000,000) shares of Common Stock, of which 1,696,284 shares were issued and outstanding; and (2) three million (3,000,000) shares of preferred stock, $.0001 par value per share, of which 2,250,000 shares had been designated as Series A Preferred Stock and 962,101 shares were issued and outstanding. The Company had reserved for issuance (x) sufficient shares of Common Stock for issuance upon conversion or redemption of all outstanding or authorized Series A Preferred Shares and (y) 2,100,000 shares of Common Stock upon exercise of options pursuant to its 2004 Stock Option Incentive Plan. Immediately after the First Closing, the capitalization of the Company was as set forth in the Capitalization Schedule attached to Schedule 7.4, which Capitalization Schedule and Schedule 7.4 (A) reflected the capitalization of the Company both on an actual shares outstanding basis and on a fully diluted basis assuming conversion of all convertible securities and the exercise of all outstanding options and warrants and all options reserved for future grant under any stock option plans and (B) set forth (I) each outstanding option, warrant or other right to purchase shares of capital stock of the Company or any of its Subsidiaries and (II) for each such option, warrant or right, the holder thereof, the date of grant, the exercise price and the number of shares subject thereto.
The Closings The Closings shall take place as follows:
(a) The initial closing of the transactions contemplated by this Agreement (the “Initial Closing”) shall take place at the offices of the Deposit Escrow Agent, commencing at 10:00 a.m. local time on September 23, 2013, or such other date or location as Buyer and Seller may mutually determine (the “Initial Closing Date”), in each case, so long as all of the conditions to the obligations of the Parties to consummate the Initial Closing as set forth in Article VII have been satisfied or waived as of such date (other than conditions with respect to actions the Parties shall take at the Initial Closing itself or which, by their nature, cannot be satisfied until the Initial Closing, but subject to the satisfaction of such conditions at the Initial Closing). At the Initial Closing, Seller shall sell, assign, transfer and convey to Buyer, and Buyer shall purchase and acquire from Seller, the Equity Interests of those Companies that own or have the right to use (or that own Purchased Subsidiaries which own or have the right to use) (i) any Unencumbered Property or (ii) any Encumbered Property in respect of which, in the case of this clause (ii), all Required Lender Consents and Required Tenant Waivers have been obtained, and all JV Redemptions have been effected, as of the Initial Closing Date. Notwithstanding anything in the foregoing to the contrary, in the event that any Company or any Purchased Subsidiary to be transferred to Buyer at the Initial Closing owns or has the right to use (or owns one or more Purchased Subsidiaries that collectively own or have the right to use) both (A) Unencumbered Property and (B) any Encumbered Property that will not be transferred to Buyer at the Initial Closing pursuant to the foregoing clause (ii), the Parties shall take such actions as are reasonably necessary prior to the Initial Closing to (1) cause such Company or Purchased Subsidiary to transfer the applicable Encumbered Property to another Company or Purchased Subsidiary, which other Company or Purchased Subsidiary will be transferred to Buyer at the Second Closing or the Third Closing or (2) amend this Agreement to provide for additional sellers hereto, such that any such Company or Purchased Subsidiary may transfer applicable Subsidiary Equity Interests to Buyer directly. The Initial Closing shall be deemed to have been consummated at 12:01 a.m. on the Initial Closing Date. Neither Party will need to be present at the Initial Closing, it being anticipated that the Parties will deliver the Initial Closing documents and deliverables in escrow to the Deposit Escrow Agent prior to the Initial Closing Date.
(b) The second closing of the transactions contemplated by this Agreement (the “Second Closing”) shall take place at the offices of the Deposit Escrow Agent, commencing at 10:00 a.m. local time on December 6, 2013, which date may be extended for up to 45 days by Seller in its sole discretion, by providing written notice to Buyer of such extension at least five (5) Business Days prior thereto, or otherwise such other date or location as Buyer and Seller may mutually determine (the “Second Closing Date”), in each case, so long as all of the conditions to the obligations of the Parties to consummate the Second Closing as set forth in Article VII have been satisfied or waived as of such date (other than conditions with respect to actions the Parties shall take at the Second Closing itself or which, by their nature, cannot be satisfied until the Second Closing, but subject to the satisfaction of such conditions at the Second Closing). At the Second Closing, Seller shall sell, assign, transfer and convey to Buyer, and Buyer shall purchase and acquire from Seller, the Equity Interests of those Companies that own or have the right to use (or that own Purchased Subsidiaries which own or have the right to use) any Encumbered Property which was not transferred to Buyer in connection with the Initial Closing and in respect of which, all Required Lender Consents and Required Tenant Waivers have been obtained, and all JV Redemptions have been effected, as of the Second Closing Date. Notwithstanding anything in the foregoing to the contrary, in the event that any Company or any Purchased Subsidiary to be transferred to Buyer at the Second Closing owns or has the right to use (or owns one or more Purchased Subsidiaries that collectively own or have the right to use) any Encumbered Property that will not be transferred to Buyer at the Second Closing pursuant to the immediately preceding sentence, the Parties shall take such actions as are reasonably necessary prior to the Second Closing to (i) cause such Company or Purchased Subsidiary to transfer the applicable Encumbered Property to another Company or Purchased Subsidiary, which other Company or Purchased Subsidiary will be transferred to Buyer at the Third Closing or (ii) amend this Agreement to provide for additional sellers hereto, such that any such Company or Purchased Subsidiary may transfer applicable Subsidiary Equity Interests to Buyer directly. The Second Closing shall be deemed to have been consummated at 12:01 a.m. on the Second Closing Date. Neither Party will need to be present at the Second Closing, it being anticipated that the Parties will deliver the Second Closing documents and deliverables in escrow to the Deposit Escrow Agent prior to the Second Closing Date.
(c) Subject to Section 2.5(d), the third closing of the transactions contemplated by this Agreement (the “Third Closing”) shall take place at the offices of the Deposit Escrow Agent, commencing at 10:00 a.m. local time on the third Business Day following the satisfaction or waiver of all conditions to the obligations of the Parties to consummate the Third Closing as set forth in Article VII (other than conditions with respect to actions the Parties shall take at the Third Closing itself or which, by their nature, cannot be satisfied until the Third Closing, but subject to the satisfaction of such conditions at the Third Closing) or such other date or location as Buyer and Seller may mutually determine (the “Third Closing Date”). At the Third Closing, Seller shall, subject to Section 2.5(d), sell, assign, transfer and convey to Buyer, and Buyer shall purchase and acquire from Seller, the Equity Interests that were not sold, assigned transferred and conveyed to Buyer at the Initial Closing or the Second Closing. The Third Closing shall be deemed to have been consummated at 12:01 a.m. on the Third Closing Date. Neither Party will need to be present at the Third Closing, it being anticipated that the Parties will deliver the Third Closing documents and deliverables in escrow to the Deposit Escrow Agent prior to the Third Closing Date.
(d) In the event that all of the conditions to the Third Closing set forth in Article VII have been satisfied or waived as of the Outside Date, other than any of the Lender Condition, the Tenant Condition and/or the JV Condition as a result of the failure to obtain any Required Lender Consent or Required Tenant Waiver or the failure to effect any JV Redemption, respectively, then the Parties shall cause the Third Closing to occur on the Outside Date but shall exclude from such Third Closing (i) any Lender Encumbered Property (or the Company or Purchased Subsidiary that owns or has the right to use such Lender Encumbered Property, so long as such Company or Purchased Subsidiary does not own or have the right to use any other Real Property) which is subject to any unobtained Required Lender Consent. (ii) any Tenant Encumbered Property (or the Company or Purchased Subsidiary that owns or has the right to use such Tenant Encumbered Property, so long as such Company or Purchased Subsidiary does not own or have the right to use any other Real Property) which is subject to any unobtained Required Tenant Waiver and (iii) any JV Encumbered Property (or the Company or Purchased Subsidiary that owns or has the right to use such JV Encumbered Property, so long as such Company or Purchased Subsidiary does not own or have the right to use any other Real Property) with respect to which a JV Redemption has not been effected (any of the Lender Encumbered Properties, Tenant Encumbered Properties or JV Encumbered Properties (or any of the Companies or Purchased Subsidiaries that owns or has the right to use any of the foregoing) which is excluded from the Third Closing pursuant to the foregoing clauses, (i), (ii) or (iii), together with any Real Property excluded from any Closing pursuant to Sections 2.9(c) or 2.11, a “Withheld Property”), in which event, (A) any such Withheld Property shall not be transferred to Buyer pursuant to this Agreement, (B) Buyer and Seller shall have no further rights or obligations under this Agreement relating to any such Withheld Property and (C) any such Withheld Property shall cease to be considered “Real Property”, a “Company” or a “Purchased Subsidiary” hereunder, as applicable.
(e) The Parties hereby acknowledge that each Lender that provides a Lender Consent may do so upon such terms and conditions (including with respect to timing and schedule), as are agreed upon between the Parties and such Lender. Notwithstanding any difference between the provisions of this Agreement and the timing and scheduling terms and conditions of any Lender Consent, the Parties agree to cooperate with each other and to use Reasonable Efforts to cause the Closings to occur on the Closing Dates provided for in this Section 2.5 and otherwise as expeditiously as practicable. In the event that any Lender requires that a Closing with respect to the applicable Lender Encumbered Property take place on a date other than the Closing Dates provided for in this Section 2.5, the Parties will agree to hold a Closing on such date and all applicable provisions of this Agreement shall apply to such Closing mutatis mutandis.
(f) The Parties hereby agree and acknowledge that the transactions contemplated by this Agreement are for the purchase and sale of the Companies and the Purchased Subsidiaries and that it is intended that such entities do not own or lease (directly or indirectly) any real property other than the Real Property and certain assets related thereto. If the Parties determine at any time prior to the applicable Closing that any Company or Purchased Subsidiary owns or has the right to use any asset or property (including any real property) other than the Real Property and assets related specifically to same (including any Defected Property that is intended to be excluded from this Agreement), the Parties shall take such actions as are necessary (including by amending, modifying or supplementing this Agreement, the annexes or exhibits hereto or the Disclosure Schedule, whether to provide for additional Sellers, Companies or Purchased Subsidiaries hereto, or otherwise) in order to provide that the Companies and Purchased Subsidiaries conveyed to Buyer at the Closings only own or have the right to use the Real Property that are to be transferred pursuant to this Agreement and are required to meet the obligations of such Company or Purchased Subsidiary as landlord under the applicable Property Lease and no other asset or property (including any real property). In addition, notwithstanding anything in this Agreement to the contrary (including anything in Section 6.1), but subject to the prior written approval of Buyer (which approval shall not be unreasonably withheld, conditioned or delayed), prior to the applicable Closing (it being agreed and understood that Buyer hereby consents to Seller taking the actions set forth in Section 2.5(f) of the Disclosure Schedule), Seller, the Companies and the Purchased Subsidiaries shall be expressly permitted to take such actions as are necessary and effect such internal restructurings as are necessary (including by distributing, dividending, assigning or otherwise transferring any assets, property (including real property), Persons or equity interests) in order to ensure that the only assets owned by the Companies and the Purchased Subsidiaries are the Real Property that are to be transferred pursuant to this Agreement and the Persons (or the equity interests in such Persons) that own or have the right to use such Real Property.
(g) Notwithstanding anything in this Agreement to the contrary, (i) the term “Closing”, as it is used in this Agreement, shall refer to any of the Initial Closing, the Second Closing or the Third Closing, as applicable, and (ii) the term “Closing Date” shall refer to any of the Initial Closing Date, the Second Closing Date or the Third Closing Date, as applicable.
Pre-Closing Option Provided that the Recipient satisfies the terms and conditions of this Agreement, Recipient may elect to have Funds delivered by the OPWC to the Title Agent prior to Closing, subject to the terms and conditions of this Agreement and the Escrow Agreement. Recipient shall make such election, if at all, by delivering to the OPWC a Disbursement Request Form and Certification in the form of Appendix E to this Agreement (the "Disbursement Request"), which shall identify the Title Agent as payee and shall be delivered after the Recipient's receipt of a Notice to Proceed and not more than sixty (60) days prior to Closing. The OPWC shall then deliver to the Title Agent Funds to be disbursed under this Agreement for the land acquisition, which Funds may be held, together with the Matching Funds, in an account subject to the terms and conditions of the Escrow Agreement. Any interest that accrues thereon shall be used by the Recipient for settlement costs. If the interest paid on such escrow account exceeds the settlement costs to be paid by the Recipient, then such funds shall be applied to the Cost of Project. If all of the conditions to the release of Funds set forth in the Escrow Agreement have been satisfied, the Title Agent shall release the escrowed Funds at Closing and apply the same to the land acquisition costs in accordance herewith and the settlement statement executed and delivered at the Closing. After Closing, the Recipient may request additional disbursements of Funds available under this Agreement relating to the land acquisition, including costs incurred in connection with appraisal of the Land, closing costs, title search, environmental assessments and other eligible costs. Within sixty (60) days of Closing, the Recipient shall deliver to the OPWC, or shall cause the Title Agent to deliver to the OPWC, a copy of the recorded Deed Restrictions and deed, or other instrument appropriate for the interest in the Land, and the executed settlement statement. If the Recipient does not close within thirty (30) days of disbursement, the Recipient must contact the OPWC immediately.
Consideration; Closing If the consideration proposed to be paid for the Transfer Stock is in property, services or other non-cash consideration, the fair market value of the consideration shall be as determined in good faith by the Board of Directors and as set forth in the Company Notice. If the Company or any Investor cannot for any reason pay for the Transfer Stock in the same form of non-cash consideration, the Company or such Investor may pay the cash value equivalent thereof, as determined in good faith by the Board of Directors and as set forth in the Company Notice. The closing of the purchase of Transfer Stock by the Company and the Investors shall take place, and all payments from the Company and the Investors shall have been delivered to the selling Key Holder, by the later of (i) the date specified in the Proposed Transfer Notice as the intended date of the Proposed Key Holder Transfer; and (ii) forty-five (45) days after delivery of the Proposed Transfer Notice.
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;
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.
