Common use of Second Tranche Closing Clause in Contracts

Second Tranche Closing. The closing of the Second Tranche pursuant to (a) Section 1.3(a) will take place on the earlier of (i) fifteen (15) business days from the date the Second Tranche Notice is delivered by the Company to the Purchasers as set forth in Section 1.3(a) or (ii) at such time as the Company and a majority of the Purchasers, based on the total number of shares of Series D Preferred Stock held by the Purchasers as of the date of the Second Tranche Notice, shall mutually agree and (b) Section 1.3(b) will take place at such time as the Company and a majority of the Purchasers participating therein, based on the total number of shares of Series D Preferred Stock held by the Purchasers as of the date of the Election Notice, shall mutually agree (each, a “Second Tranche Closing Date”). The First Tranche Closing and the Second Tranche Closing shall each be referred to herein as a “Closing,” and the date of any Closing is referred to herein as a “Closing Date”. Any Second Tranche Closing shall be subject to the terms and conditions set forth in this Agreement and (i) the representations and warranties of the Company set forth in Section 3 hereof (and the schedules attached hereto) shall be true and correct in all material respects (except for those representations or warranties qualified by materiality, which shall be true and correct in all respects) on and as of any Second Tranche Closing Date or as of such other dates as are referenced in such representations or warranties, and shall be deemed modified by any updates to the Disclosure Schedules delivered to the Purchasers at the Second Tranche Closing; provided that the Company shall deliver such updated Disclosure Schedules to the Purchasers no later than 5 business days before the Second Tranche Closing Date, and (ii) the representations and warranties of the Purchasers in Section 4 hereof shall be true and correct on and as of any Second Tranche Closing Date.

Second Tranche Closing. The closing of the sale and purchase of the Second Tranche pursuant to Shares (athe “Second Tranche Closing”) Section 1.3(a) will shall take place on the earlier of date specified by DDF or the Company, as the case may be, which date shall be specified in a written notice delivered pursuant to this Section 1.4(b) (i) fifteen (15) business days from the date the “Second Tranche Notice is delivered by the Company to the Purchasers as set forth Notice”) and shall in Section 1.3(ano event be later than five (5) or (ii) at such time as the Company and a majority of the Purchasers, based on the total number of shares of Series D Preferred Stock held by the Purchasers as of Business Days after the date of the Second Tranche NoticeNotice and, with respect to a Second Tranche Notice delivered by the Company, shall mutually agree and in no event be earlier than December 15, 2011 (b) Section 1.3(b) will take place at such time as the Company and a majority of the Purchasers participating therein, based on the total number of shares of Series D Preferred Stock held by the Purchasers as of the date of the Election Notice, shall mutually agree (each, a “Second Tranche Closing Date”). The First Tranche Closing and DDF may deliver the Second Tranche Closing shall each be referred Notice the Company on or before March 15, 2012 specifying DDF’s election, in its sole discretion, to herein as a “Closing,” and purchase the Second Tranche Shares from the Company in accordance with the terms of this Agreement. The Company may deliver the Second Tranche Notice to DDF on or prior to December 15, 2011 specifying the Company’s election, in its sole discretion, to sell the Second Tranche Shares to DDF in accordance with the terms of this agreement; provided, however, that the Company may not deliver the Second Tranche Notice prior to the date on which at least thirty-three and one-third percent (33 1/3%) of any Closing is referred the outstanding principal amount, as of the date hereof, under that certain Senior Secured Convertible Note, originally issued March 17, 2010 to herein as VPC Fund II, LP. and assigned and reissued to Victory Park Credit Opportunities Master Fund, Ltd. Capital (hereafter “Victory Park”) on July 28, 2010 (the “VP Note”), has been converted into Common Stock in accordance with the terms of the VP Note. In the event that neither the Company nor DDF delivers a “Closing Date”. Any Second Tranche Closing Notice in accordance with this Section 1.4(b), there shall not be subject to a Second Tranche Closing. At the terms and conditions set forth in this Agreement and Second Tranche Closing: (i) DDF shall deliver to the Company the Second Tranche Purchase Price by wire transfer for immediately available funds to a bank account designated in writing by the Company, (ii) the Company shall deliver a certificate or certificates representing the Second Tranche Shares to DDF, and (iii) each of the Company and DDF shall deliver to the other a certificate, executed on each entity’s behalf by its Chief Executive Officer or Chief Financial Officer, certifying that the representations and warranties of the Company set forth in Section 3 hereof (Sections 4 and the schedules attached hereto) shall be 5, as applicable, are true and correct in all material respects (except for those representations or warranties qualified by materiality, which shall be true and correct in all respects) on and as of any Second Tranche Closing Date or as of such other dates as are referenced in such representations or warranties, and shall be deemed modified by any updates to the Disclosure Schedules delivered to the Purchasers at the Second Tranche Closing; provided that the Company shall deliver such updated Disclosure Schedules to the Purchasers no later than 5 business days before the Second Tranche Closing Date, and (ii) the representations and warranties of the Purchasers in Section 4 hereof shall be true and correct on and as of any Second Tranche Closing Date.

Second Tranche Closing. (a) If following the Closing, the Company shall determine that the EBIDTA set forth in Schedule 1.4 has been achieved, in whole or in part (in which case, the rate of achievement shall be stated) (the “Milestone Conditions”), the Company shall deliver a written notice (a “Second Tranche Notification”) to the Investor that a closing of the purchase and sale of 1 additional Ordinary Share (the “Second Tranche Closing Share”) (the “Second Tranche Closing”) is to take place pursuant to this Subsection 1.4. The closing Second Tranche Notification shall include the proposed date for the Second Tranche Closing, which date shall be no earlier than fourteen (14) days after the date of the Second Tranche Notification. Subject to the terms and conditions of this Agreement and at the Second Tranche Closing, the Company shall sell and issue to the Investor and the Investor shall purchase at the Second Tranche Closing the Second Tranche Closing Share against payment of US$250,000 or a proportionate portion thereof, in accordance with the level of achievement of the Milestone Conditions (the “Second Tranche Amount”), by wire transfer to a bank account designated by the Company. Notwithstanding the foregoing, in lieu of the issuance of the Second Tranche Closing, the Parties may mutually agree to apply an additional premium on account of the Purchased Shares. In case of issuance of the Second Tranche Closing Share, all shares held by the Investor shall be deemed to have effective price per share equal to the total amount of the Purchase Price and the Second Tranche Amount divided by the total number of shares purchased by the Investor. The initial consideration and determination whether or not the Milestone Conditions shall have been achieved shall be made by the directors of the Company excluding the Medigus Directors (as defined in the Restated Articles). Upon receipt of the Second Tranche Notification, the Investor may ask for any information and clarifications it deems necessary to determine whether the Milestone Conditions have been met, and it may also respond with an objection to the Second Tranche Notification based on its position that the Milestone Conditions have not been achieved. In such case of disagreement, the parties may refer the matter to an arbitrator to be mutually agreed upon, and in case of disagreement, the matter would be dealt with pursuant to the provisions of Section 8.5 of this Agreement. The Investor shall not be required to pay any portion of the Second Tranche Amount until a non-appealable decision has been made. In all such actions, the Medigus Directors shall not be involved in their capacities as directors, in any actions taken by the Company with respect to the Second Tranche Closing. (ab) The Investor’s obligation to transfer the Second Tranche Amount and purchase the Second Tranche Closing Share at the Second Tranche Closing may be satisfied by any person or entity that is a Permited Transferee of the Investor (as such term is defined in the Restated Articles) (the “Additional Investor”), subject to compliance with the provisions of Section 1.3(a20.1.1 of the Restated Articles, applied as if this is a Transfer; provided, that the Investor alone shall remain the party to this Agreement, such as for purposes of the Share Exchange Option Agreement, the Information Rights Agreement, etc.; provided however that the Additional Investor shall provide a letter of confirmation regarding the provisions of Section 3 of this Agreement. (c) will take place on For any and all purposes under this Agreement and any other Transaction Documents, the date of issuance of the Second Tranche Closing Share shall be deemed to be the date of Closing, specifically for purposes of the provisions of Section 7 of this Agreement. (d) Notwithstanding the foregoing, the obligations of the Investor under this Subsection 1.4 shall terminate and be of no further force or effect upon the earlier of (i) fifteen (15) business days from the date the Second Tranche Notice is delivered by the Company to the Purchasers as set forth in Section 1.3(a) December 31, 2023, or (ii) at such time as the Company and a majority of the Purchasers, based on the total number of shares of Series D Preferred Stock held by the Purchasers as of the date of the Second Tranche Notice, shall mutually agree and (b) Section 1.3(b) will take place at such time as the Company and a majority of the Purchasers participating therein, based on the total number of shares of Series D Preferred Stock held by the Purchasers as of the date of the Election Notice, shall mutually agree (each, a “Second Tranche Closing Date”). The First Tranche Closing and the Second Tranche Closing shall each be referred to herein as a “Closing,” and the date of any Closing is referred to herein as a “Closing Date”. Any Second Tranche Closing shall be subject immediately prior to the terms and conditions set forth consummation of a Deemed Liquidation (as defined in this Agreement and (i) the representations and warranties of the Company set forth in Section 3 hereof (and the schedules attached hereto) shall be true and correct in all material respects (except for those representations or warranties qualified by materiality, which shall be true and correct in all respects) on and as of any Second Tranche Closing Date or as of such other dates as are referenced in such representations or warranties, and shall be deemed modified by any updates to the Disclosure Schedules delivered to the Purchasers at the Second Tranche Closing; provided that the Company shall deliver such updated Disclosure Schedules to the Purchasers no later than 5 business days before the Second Tranche Closing Date, and (ii) the representations and warranties of the Purchasers in Section 4 hereof shall be true and correct on and as of any Second Tranche Closing DateRestated Articles).