Subsequent Closings. At any time after September 30, 2016, the Company may from time to time request that the Purchasers purchase up to the balance of Thirty Million Dollars ($30,000,000) in value of Series D Preferred Stock not previously issued and sold at the First Closing in Five Hundred Thousand Dollars ($500,000) increments. Any such request shall be delivered in writing to the Purchasers who then hold Series D Preferred Stock, and such requested amount shall be offered pro rata to the Purchasers who then hold Series D Preferred Stock. Within ten (10) business days after any such written request is delivered to the Purchasers, the Purchasers who desire to fulfill such request shall respond to the Company in writing indicating the amount of such requested amount such Purchaser is willing to purchase from the Company. Any such additional purchase shall be in the discretion of each Purchaser. Further, any such additional purchase may be allocated by any such Purchaser among one or more of its funds, in its discretion. If one or more Purchasers agree(s) to purchase additional amounts pursuant to this Section 1.3.2, then the Schedule of Purchasers shall be amended to reflect the amount so purchased by each such Purchaser and the date of such closing (each, a “Subsequent Closing,” and together with the First Closing, the “Closings”). Subsequent Closings shall be held at such time and place as shall be mutually agreed upon by the Company and the Purchasers who are participating in such Subsequent Closing. For purposes of this Agreement, unless the context otherwise requires, the term “Closing” shall refer, with respect to each Purchaser, to the date of the specific closing at which such Purchaser purchases shares of Series D Preferred Stock and delivers to the Company the purchase price therefor. At a Closing, each applicable Purchaser shall deliver to the Company by check or wire transfer of immediately available funds the amount indicated opposite such Purchaser’s name on the Schedule of Purchasers, and the Company shall deliver to each such Purchaser an originally executed certificate representing the shares of Series D Preferred Stock so purchased. The Purchasers expressly acknowledge that the Company may, in its discretion, issue and sell less than or up to Thirty Million Dollars ($30,000,000) in value of the Series D Preferred Stock, as determined by the Board of Directors of the Company in its sole and absolute discretion; provided, however, that Woodford Investment Management LLP, as agent for and on behalf of XX Xxxxxxxx Equity Income Fund, a sub fund of XX Xxxxxxxx Investment Fund and Woodford Patient Capital Trust Plc (collectively, “WIM”), shall deliver to the Company that certain Amended and Restated Promissory Note, dated as of July 18, 2016, by and between Evofem, Inc., a Delaware corporation, and Cosmederm Bioscience, Inc., a Delaware corporation (“Cosmederm”), in principal amount of Ten Million Dollars ($10,000,000) (the “Promissory Note”) for cancellation by the Company in exchange for Five Million Dollars ($5,000,000) in value of the Series D Preferred Stock.
Appears in 1 contract
Samples: Series D Preferred Stock Purchase Agreement (Neothetics, Inc.)
Subsequent Closings. At any time on or after September 30, 2016the Initial Closing and upon the approval of the Company’s Board of Directors, the Company may from time shall have the right to time request that the Purchasers purchase sell up to the balance of Thirty Million Dollars ($30,000,000) in value 266,099 authorized but unissued shares of Series D Preferred Stock not previously issued (as adjusted for stock splits, stock dividends, combinations, recapitalizations and sold at the First Closing in Five Hundred Thousand Dollars ($500,000like) increments. Any such request shall be delivered in writing to the Purchasers who then hold Series D Preferred Stock, and such requested amount shall be offered pro rata to the Purchasers who then hold Series D Preferred Stock. Within ten (10) business days after any such written request is delivered to the Purchasers, the Purchasers who desire to fulfill such request shall respond to the Company in writing indicating the amount of such requested amount such Purchaser is willing to purchase from the Company. Any such additional purchase shall be in the discretion of each Purchaser. Further, any such additional purchase may be allocated by any such Purchaser among one or more of its funds, in its discretion. If purchasers at the price and on the terms and conditions set forth herein at one or more Purchasers agree(s) to purchase additional amounts pursuant to this Section 1.3.2, then the Schedule of Purchasers shall be amended to reflect the amount so purchased by each such Purchaser and the date of such closing subsequent closings (each, a “Subsequent Closing,” and together with the First Closing, the “Closings”). ; provided, however, that in no event will any Shares be sold in any Subsequent Closings shall be held at such time and place as shall be mutually agreed upon by Closing to any person who is a stockholder of the Company and at the Purchasers who are participating in time of such Subsequent Closing. For Upon payment of the purchase price for the Series D Preferred Stock being purchased and execution of a signature page counterpart to this Agreement and the Investment Agreements, and without need for an amendment hereto or thereto except to add such Purchaser’s name to Exhibit A to this Agreement and to the appropriate exhibits of the Investment Agreements, any such Purchaser shall become a party to this Agreement and the Investment Agreements, and shall be deemed a “Purchaser” for purposes of this AgreementAgreement and the Investment Agreements, unless the context otherwise requires, the term “Closing” shall refer, with respect to in each Purchaser, to case as of the date of the specific closing at which applicable Subsequent Closing. If such Purchaser purchases is an “institutional investor”, then the consent of the holders of a majority in interest of the outstanding shares of Series D Preferred Stock and delivers shall be required prior to the Company the purchase price therefor. At a Closing, each applicable Purchaser shall deliver to the Company by check or wire transfer of immediately available funds the amount indicated opposite such Purchaser’s name on the Schedule of Purchasers, and the Company shall deliver to each such Purchaser an originally executed certificate representing the shares sale of Series D Preferred Stock so purchasedto such entity. The Purchasers expressly acknowledge that As used herein, the Company may, in its discretion, issue and sell less than or up to Thirty Million Dollars ($30,000,000) in value term “institutional investor” shall mean all of the Series D Preferred Stockforegoing: (i) an entity which engages primarily in the business of promoting economic, business or industrial development through venture capital investments; (ii) a depository institution; (iii) an insurance company; (iv) an investment company (as determined by such term is defined in the Board Investment Company Act of Directors of the Company in its sole 1940); and absolute discretion; provided, however, that Woodford Investment Management LLP, as agent for and on behalf of XX Xxxxxxxx Equity Income Fund, (v) a sub fund of XX Xxxxxxxx Investment Fund and Woodford Patient Capital Trust Plc (collectively, “WIM”), shall deliver to the Company that certain Amended and Restated Promissory Note, dated as of July 18, 2016, by and between Evofem, Inc., a Delaware corporation, and Cosmederm Bioscience, Inc., a Delaware corporation (“Cosmederm”), in principal amount of Ten Million Dollars ($10,000,000) (the “Promissory Note”) for cancellation by the Company in exchange for Five Million Dollars ($5,000,000) in value of the Series D Preferred Stockcorporate strategic investor.
Appears in 1 contract
Samples: Series D Preferred Stock Purchase Agreement (SuccessFactors, Inc.)
Subsequent Closings. At The Closing of the purchase and sale of any time Additional Leases ("Additional Lease Group"), as provided for in this Agreement, will occur on one or more dates after September 30April 15, 20162008 (each a "Subsequent Closing"). Unless Purchaser rejects any of the Additional Leases in an Additional Lease Group (as defined on Exhibit 2) because of (a) title defects, (b) because the Company may Leases do not comply with the terms of this Agreement as provided in Section 3(a) and otherwise herein, or (c) because Purchaser has a reasonable good faith reason to believe that a Lease will not result in a well capable of producing commercial quantities of hydrocarbons from time the Middle Xxxxxx Shale Formation, Purchaser shall deliver to time request that the Purchasers purchase up to the balance of Thirty Million Dollars ($30,000,000) in value of Series D Preferred Stock not previously issued and sold at the First Closing in Five Hundred Thousand Dollars ($500,000) increments. Any such request shall be delivered in writing to the Purchasers who then hold Series D Preferred StockAgent or its designee, and such requested amount shall be offered pro rata to the Purchasers who then hold Series D Preferred Stock. Within within ten (10) business days after of receipt of written (i) notice from Agent identifying the Additional Leases proposed to be acquired, including at a minimum the information concerning each such Additional Lease that is referenced on Exhibit 2 hereto, together with reasonable title information and notice of any such written request is delivered material issues or defects in title as to any of the Additional Leases included in the Additional Lease Group which are known to the Purchasers, the Purchasers who desire Agent and (ii) evidence that each Additional Lease to fulfill such request shall respond to the Company in writing indicating the amount be acquired as part of such requested amount such Purchaser is willing to purchase from the Company. Any such additional purchase shall be in the discretion of each Purchaser. Further, any such additional purchase may be allocated by any such Purchaser among one or more of its funds, in its discretion. If one or more Purchasers agree(s) to purchase additional amounts pursuant to this Section 1.3.2, then the Schedule of Purchasers shall be amended to reflect the amount so purchased by each such Purchaser and the date of such closing (each, a “Subsequent Closing,” and together proposed Additional Lease Group complies with the First Closing, the “Closings”). Subsequent Closings shall be held at such time and place as shall be mutually agreed upon by the Company and the Purchasers who are participating in such Subsequent Closing. For purposes provisions of this Agreement, unless funds at a Subsequent Closing sufficient to purchase the context otherwise requires, the term “Closing” shall refer, with respect to each Purchaser, to the date of the specific closing at which such Additional Lease Group submitted by Purchaser purchases shares of Series D Preferred Stock and delivers to the Company the purchase price therefor. At for a Subsequent Closing, each applicable Purchaser which when paid shall deliver to be deemed the Company by check or wire transfer of immediately available funds Lease Group Purchase Price under this Agreement for any and all Additional Leases in the amount indicated opposite such Purchaser’s name on the Schedule of Purchasers, and the Company shall deliver to each such Purchaser an originally executed certificate representing the shares of Series D Preferred Stock so purchased. The Purchasers expressly acknowledge that the Company may, in its discretion, issue and sell less than or up to Thirty Million Dollars ($30,000,000) in value of the Series D Preferred Stock, as determined by the Board of Directors of the Company in its sole and absolute discretionAdditional Lease Group; provided, however, that Woodford Investment Management LLP, as agent for in no event will a Subsequent Closing occur if the total Lease Group Purchase Price of Additional Leases in an Additional Lease Group to be acquired at any Subsequent Closing is less than Five Hundred Thousand and on behalf of XX Xxxxxxxx Equity Income Fund, a sub fund of XX Xxxxxxxx Investment Fund and Woodford Patient Capital Trust Plc No/100ths Dollars (collectively, “WIM”$500,000.00), shall deliver unless otherwise agreed to the Company that certain Amended and Restated Promissory Note, dated as of July 18, 2016, by and between Evofem, Inc., a Delaware corporationin advance in writing with Purchaser, and Cosmederm Bioscience, Inc., a Delaware corporation (“Cosmederm”)in no event shall the funds paid by Purchaser for Additional Lease Groups exceed, in principal amount of Ten the aggregate, Three Million Dollars ($10,000,000) (the “Promissory Note”) for cancellation by the Company in exchange for Five Million Dollars ($5,000,000) in value of the Series D Preferred Stock3,000,000.00).
Appears in 1 contract
Subsequent Closings. At any time after September 30, 2016, (a) The closing of the Company may from time to time request that the Purchasers purchase up to the balance and sale of Thirty Million Dollars ($30,000,000) in value shares of Series D Class AA Preferred Stock not previously issued and sold at the First Closing in Five Hundred Thousand Dollars ($500,000) increments. Any such request shall be delivered in writing to the Purchasers who then hold Series D Preferred Stock, and such requested amount shall be offered pro rata to the Purchasers who then hold Series D Preferred Stock. Within ten (10) business days after any such written request is delivered to the Purchasers, the Purchasers who desire to fulfill such request shall respond to the Company in writing indicating the amount of such requested amount such Purchaser is willing to purchase from the Company. Any such additional purchase shall be in the discretion of each Purchaser. Further, any such additional purchase may be allocated by any such Purchaser among one or more of its funds, in its discretion. If one or more Purchasers agree(s) to purchase additional amounts pursuant to this Section 1.3.2, then 2.1 or the Schedule exercise of Purchasers shall be amended to reflect the amount so purchased by an Investor Call Right (each such Purchaser and the date of such closing (each, a “Subsequent Closing,” and together with the First Closing, the “Closings”). Subsequent Closings ) shall be held at the offices of Xxxxxxx Xxxx & Xxxxxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 a.m. Eastern Time on the later of: (i) the date specified in Annex C or the notice exercising the Investor Call Right, as applicable, (ii) the Business Day following the satisfaction or waiver of the conditions to the Subsequent Closing set forth in Article VII (other than those conditions that by their terms are to be satisfied by actions taken at the Subsequent Closing), and (iii) such later date as determined pursuant to paragraph (b) below; provided, that a Subsequent Closing may occur on such other date or at such other time and place as shall be mutually agreed upon by the Company and Investor may mutually agree in writing in their sole discretion. The date on which a Subsequent Closing actually occurs is referred to as a “Subsequent Closing Date.”
(b) The Company shall delay any Subsequent Closing Date until the Purchasers who are participating expiration or termination of governmentally imposed waiting periods and the obtaining of governmental approvals, including pursuant to the HSR Act, if any, to allow the Company to make one or more required governmental filings or obtain one or more required governmental approvals and to allow the Investor to make and obtain such filings and approvals, in connection with such Subsequent Closing. For purposes of this AgreementClosing (provided that the Investor reasonably believes, unless the context otherwise requires, the term “Closing” shall refer, with respect to each Purchaser, to the date of the specific closing at which such Purchaser purchases shares of Series D Preferred Stock and delivers to the Company the purchase price therefor. At a Closing, each applicable Purchaser shall deliver to the Company by check or wire transfer of immediately available funds the amount indicated opposite such Purchaser’s name based on the Schedule advice of Purchaserscounsel, that such Investor must make or obtain any such filings or approvals, and the Company shall deliver use its reasonable efforts to make each such Purchaser an originally executed certificate representing required governmental filing and seek each such required governmental approval as promptly as possible). In no event shall the shares Investor be deemed to be in breach of Series D Preferred Stock so purchased. The Purchasers expressly acknowledge that the Company may, in its discretion, issue and sell less than or up to Thirty Million Dollars ($30,000,000) in value this Agreement as a result of the Series D Preferred Stock, as determined Investor’s inability to consummate a Subsequent Closing prior to such compliance by the Board of Directors of the Company in its sole and absolute discretion; provided, however, that Woodford Investment Management LLP, as agent for and on behalf of XX Xxxxxxxx Equity Income Fund, a sub fund of XX Xxxxxxxx Investment Fund and Woodford Patient Capital Trust Plc (collectively, “WIM”), shall deliver to the Company that certain Amended and Restated Promissory Note, dated as of July 18, 2016, by and between Evofem, Inc., a Delaware corporation, and Cosmederm Bioscience, Inc., a Delaware corporation (“Cosmederm”), in principal amount of Ten Million Dollars ($10,000,000) (the “Promissory Note”) for cancellation by the Company in exchange for Five Million Dollars ($5,000,000) in value of the Series D Preferred StockCompany.
Appears in 1 contract
Samples: Stock Purchase Agreement (Odyssey Marine Exploration Inc)
Subsequent Closings. At (i) Each Purchaser at the Initial Closing shall have the option, exercisable in its sole and exclusive discretion at any time after September 30, 2016, the Company may and from time to time request following the date of the Shareholder Approval of Increase in Authorized Shares (as defined in Section 7(a) below) and on or before June 30, 2014 (the “Expiration Date”), to purchase (and upon receipt of a Demand Notice (as defined below) from a Purchaser, the Company must sell) at one or more subsequent Closings on or before the Expiration Date (each such Closing, a “Subsequent Closing”), on the same terms and conditions as those contained in this Agreement, additional Shares and additional Warrants in an aggregate amount not to exceed the number of Shares and the number of Warrant Shares set forth opposite such Purchaser’s name under the heading “Subsequent Closings” on Schedule I hereto. Any Purchaser electing to purchase additional Shares and an additional Warrant at a Subsequent Closing shall provide written notice thereof to the Company, stating the number of additional Shares to be purchased and the number of Warrant Shares to be subject to the accompanying Warrant (which shall equal seventy-five percent (75%) of the number of additional Shares to be purchased at such Subsequent Closing), duly executed by such Purchaser and delivered to the Company in accordance with Section 9(d) (the “Demand Notice”). Following its delivery of a Demand Notice to the Company (and subject to the satisfaction or waiver of the conditions set forth in Subsections (e) and (g) of this Section 2), such Purchaser shall purchase from the Company, and the Company shall issue and sell to such Purchaser, at the Per Share Purchase Price, the additional Shares and Warrant as set forth in the Demand Notice. Each Subsequent Closing shall occur at such location, date and time as may be agreed upon between the Company and the Purchaser exercising the Purchaser Demand (each, a “Subsequent Closing Date”). The Initial Closing and each Subsequent Closing may also be referred to in this Agreement as a “Closing,” and the Initial Closing Date and each Subsequent Closing Date may also be referred to in this Agreement as a “Closing Date.”
(ii) In the event that a Purchaser does not purchase any portion of the additional Shares and Warrant Shares set forth opposite such Purchaser’s name under the heading “Subsequent Closings” on Schedule I hereto on or before the Expiration Date (a “Non-Participating Purchaser”), then the Company shall provide written notice of such non-participation to each participating Purchaser (each a “Participating Purchaser”). Within thirty (30) days following the Company’s delivery of such notice, each Participating Purchaser shall have the right, but not the obligation, to purchase its pro rata portion of any additional Shares and Warrant Shares allocated to a Non-Participating Purchaser. In addition, each Participating Purchaser shall have the right, but not the obligation, to oversubscription such that if any other Participating Purchaser fails to purchase its full pro rata portion of a Non-Participating Purchaser’s additional Shares and Warrant Shares, the other Participating Purchasers shall, among them, have the right to purchase up to the balance of Thirty Million Dollars ($30,000,000) the additional Shares and Warrant Shares not so purchased. If, as a result thereof, such oversubscriptions exceed the total number of additional Shares and Warrant Shares available in value respect of Series D Preferred Stock not previously issued and sold at the First Closing in Five Hundred Thousand Dollars ($500,000) increments. Any such request shall be delivered in writing to the Purchasers who then hold Series D Preferred Stock, and such requested amount shall be offered pro rata to the Purchasers who then hold Series D Preferred Stock. Within ten (10) business days after any such written request is delivered to the Purchasersoversubscription right, the Purchasers who desire to fulfill such request shall respond to the Company in writing indicating the amount of such requested amount such Purchaser is willing to purchase from the Company. Any such additional purchase shall be in the discretion of each Purchaser. Further, any such additional purchase may be allocated by any such Purchaser among one or more of its funds, in its discretion. If one or more Purchasers agree(s) to purchase additional amounts pursuant to this Section 1.3.2, then the Schedule of oversubscribing Participating Purchasers shall be amended cut back with respect to reflect the amount so purchased by each such Purchaser and the date of such closing (each, a “Subsequent Closing,” and together their oversubscriptions in accordance with the First Closing, the “Closings”). Subsequent Closings shall be held at such time and place as shall be mutually agreed upon by the Company and the Purchasers who are participating in such Subsequent Closingtheir respective pro rata portion. For purposes of this AgreementSection 2(b)(ii), unless the context otherwise requires, the term “Closing” shall refer, with respect to each a Participating Purchaser, ’s pro rata portion is equal to the date quotient obtained by dividing the total number of the specific closing at which Shares purchased by such Participating Purchaser purchases shares of Series D Preferred Stock and delivers pursuant to the Company the purchase price therefor. At a Closing, each applicable Purchaser shall deliver to the Company by check or wire transfer of immediately available funds the amount indicated opposite such Purchaser’s name on the Schedule of Purchasers, and the Company shall deliver to each such Purchaser an originally executed certificate representing the shares of Series D Preferred Stock so purchased. The Purchasers expressly acknowledge that the Company may, in its discretion, issue and sell less than or up to Thirty Million Dollars ($30,000,000) in value of the Series D Preferred Stock, as determined this Agreement by the Board total number of Directors of the Company in its sole and absolute discretion; provided, however, that Woodford Investment Management LLP, as agent for and on behalf of XX Xxxxxxxx Equity Income Fund, a sub fund of XX Xxxxxxxx Investment Fund and Woodford Patient Capital Trust Plc (collectively, “WIM”), shall deliver Shares purchased by all Participating Purchasers pursuant to the Company that certain Amended and Restated Promissory Note, dated as of July 18, 2016, by and between Evofem, Inc., a Delaware corporation, and Cosmederm Bioscience, Inc., a Delaware corporation (“Cosmederm”), in principal amount of Ten Million Dollars ($10,000,000) (the “Promissory Note”) for cancellation by the Company in exchange for Five Million Dollars ($5,000,000) in value of the Series D Preferred Stockthis Agreement.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Interleukin Genetics Inc)
Subsequent Closings. A Subsequent Closing shall occur as soon as practicable, and in any event within 5 business days of the delivery by the Company to Purdue of a written notice calling for such Subsequent Closing and specifying the amount of Common Shares to be issued at such Subsequent Closing (each a “Subsequent Closing Notice”), which in each case shall be an even number of Common Shares. At any time after September 30, 2016each Subsequent Closing, the Company may from time will deliver to time request that Purdue via e-mail an electronic copy of the Purchasers purchase signed stock certificate(s) representing the number of Common Shares specified in the applicable Subsequent Closing Notice, registered in Purdue’s name, and an electronic copy of a signed Warrant exercisable for a number of Warrant Shares equal to 35% of the number of the Common Shares issued in each such Subsequent Closing, which number of Warrant Shares shall be rounded up to the balance of Thirty Million Dollars ($30,000,000) in value of Series D Preferred Stock not previously issued and sold at next even number. The Company will use its best efforts to achieve the First Closing in Five Hundred Thousand Dollars ($500,000) increments. Any such request shall be delivered in writing to the Purchasers who then hold Series D Preferred Stockauthorization, and such requested amount shall be offered pro rata to take all requisite action on the Purchasers who then hold Series D Preferred Stock. Within ten (10) business days after any such written request is delivered to the Purchasers, the Purchasers who desire to fulfill such request shall respond to the Company in writing indicating the amount part of such requested amount such Purchaser is willing to purchase from the Company. Any such additional purchase shall be in the discretion , its officers, directors and stockholders necessary for said authorization, of each Purchaser. Further, any such additional purchase may be allocated by any such Purchaser among one or more sufficient shares of its funds, in its discretion. If one or more Purchasers agree(s) Common Stock to purchase additional amounts issue to Purdue all Common Shares and Warrants issuable pursuant to this Section 1.3.2, then Agreement as soon as practicable after the Schedule Initial Closing. Each of Purchasers shall be amended to reflect the amount so purchased by each such Purchaser and the date of such closing (each, a “Subsequent Closing,” and together with the First Closing, the “Closings”). Subsequent Closings shall be held at such time and place as shall be mutually agreed upon by the Company and Purdue shall use its best efforts to complete the Purchasers who are participating in such Final Subsequent ClosingClosing on or prior to Exclusive Negotiation Period. For purposes Following delivery of this Agreementeach Subsequent Closing Notice, unless the context otherwise requires, the term “Closing” Purdue shall refer, with respect to each Purchaser, to the date of the specific closing at which such Purchaser purchases shares of Series D Preferred Stock and delivers to the Company the purchase price therefor. At promptly initiate a Closing, each applicable Purchaser shall deliver to the Company by check or wire transfer of immediately available funds (U.S. dollars) equal to the amount indicated opposite stated value of such Purchaser’s name Common Shares to be delivered to the account of the Company, account details of which are as set forth on Schedule 4.2 affixed hereto. Notwithstanding the Schedule of Purchasersforegoing (i) at each Subsequent Closing, and the Company shall deliver to each such Purchaser an originally executed certificate representing the shares of Series D Preferred Stock so purchased. The Purchasers expressly acknowledge that the Company may, in its discretion, issue and sell not less than or up to Thirty Million Dollars $1,000,000 other than the final Subsequent Closing which can be for less than $1,000,000; ($30,000,000ii) in value the aggregate purchase price of the Series D Preferred Stock, as determined by Common Shares and Warrants sold in all Closings shall not exceed the Board of Directors Investment Amount; and (iii) no Subsequent Closing shall take place after the end of the Company in its sole and absolute discretion; provided, however, that Woodford Investment Management LLP, as agent for and on behalf Exclusive Negotiation Period without the prior written consent of XX Xxxxxxxx Equity Income Fund, a sub fund of XX Xxxxxxxx Investment Fund and Woodford Patient Capital Trust Plc (collectively, “WIM”), shall deliver to the Company that certain Amended and Restated Promissory Note, dated as of July 18, 2016, by and between Evofem, Inc., a Delaware corporation, and Cosmederm Bioscience, Inc., a Delaware corporation (“Cosmederm”), in principal amount of Ten Million Dollars ($10,000,000) (the “Promissory Note”) for cancellation by the Company in exchange for Five Million Dollars ($5,000,000) in value of the Series D Preferred StockPurdue.
Appears in 1 contract
Samples: Securities Purchase Agreement (Novelos Therapeutics, Inc.)
Subsequent Closings. At any time after September 30, 2016, (i) The obligations of the Company may from time hereunder in connection with each Subsequent Closing are subject to time request that the following conditions being met:
(1) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) on such Subsequent Closing Date of the representations and warranties of the Purchasers purchase up contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);
(2) all obligations, covenants and agreements of each Purchaser required to be performed at or prior to such Subsequent Closing Date shall have been performed; and
(3) the delivery by each Purchaser of the items set forth in Section 2.3(b)(ii) of this Agreement.
(ii) The respective obligations of the Purchasers hereunder in connection with each Subsequent Closing are subject to the balance following conditions being met:
(1) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) on such Subsequent Closing Date of Thirty Million Dollars the representations and warranties of the Company contained herein ($30,000,000) unless as of a specific date therein in value of Series D Preferred Stock not previously issued and sold at the First Closing in Five Hundred Thousand Dollars ($500,000) increments. Any such request which case they shall be delivered accurate as of such date);
(2) all obligations, covenants and agreements of the Company required to be performed at or prior to such Subsequent Closing Date shall have been performed;
(3) the delivery by the Company of the items set forth in writing to the Purchasers who then hold Series D Preferred Stock, and such requested amount Section 2.3(b)(i) of this Agreement;
(4) there shall be offered pro rata to the Purchasers who then hold Series D Preferred Stock. Within ten (10) business days after any such written request is delivered to the Purchasers, the Purchasers who desire to fulfill such request shall respond have been no Material Adverse Effect with respect to the Company since the date hereof;
(5) all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Closing Shares, including without limitation, those required by the Trading Market, if any, shall have been obtained by the Company; and
(6) from the date hereof to such Subsequent Closing Date, trading in writing indicating the amount Common Stock shall not have been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to such Subsequent Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such requested amount magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser is willing Purchaser, makes it impracticable or inadvisable to purchase from the Company. Any such additional purchase shall be in the discretion of each Purchaser. Further, any such additional purchase may be allocated by any such Purchaser among one or more of its funds, in its discretion. If one or more Purchasers agree(s) to purchase additional amounts pursuant to this Section 1.3.2, then the Schedule of Purchasers shall be amended to reflect the amount so purchased by each such Purchaser and the date of such closing (each, a “Subsequent Closing,” and together with the First Closing, the “Closings”). Subsequent Closings shall be held Closing Shares at such time and place as shall be mutually agreed upon by the Company and the Purchasers who are participating in such Subsequent Closing. For purposes of this Agreement, unless the context otherwise requires, the term “Closing” shall refer, with respect to each Purchaser, to the date of the specific closing at which such Purchaser purchases shares of Series D Preferred Stock and delivers to the Company the purchase price therefor. At a Closing, each applicable Purchaser shall deliver to the Company by check or wire transfer of immediately available funds the amount indicated opposite such Purchaser’s name on the Schedule of Purchasers, and the Company shall deliver to each such Purchaser an originally executed certificate representing the shares of Series D Preferred Stock so purchased. The Purchasers expressly acknowledge that the Company may, in its discretion, issue and sell less than or up to Thirty Million Dollars ($30,000,000) in value of the Series D Preferred Stock, as determined by the Board of Directors of the Company in its sole and absolute discretion; provided, however, that Woodford Investment Management LLP, as agent for and on behalf of XX Xxxxxxxx Equity Income Fund, a sub fund of XX Xxxxxxxx Investment Fund and Woodford Patient Capital Trust Plc (collectively, “WIM”), shall deliver to the Company that certain Amended and Restated Promissory Note, dated as of July 18, 2016, by and between Evofem, Inc., a Delaware corporation, and Cosmederm Bioscience, Inc., a Delaware corporation (“Cosmederm”), in principal amount of Ten Million Dollars ($10,000,000) (the “Promissory Note”) for cancellation by the Company in exchange for Five Million Dollars ($5,000,000) in value of the Series D Preferred Stock.
Appears in 1 contract
Subsequent Closings. The balance of the Purchase Price shall be ------------------- paid by the Investor, and the Subsequent Notes shall be issued by the Company, at subsequent closings (each being a "Subsequent Closing"). A Subsequent Closing shall occur at one or two subsequent dates (each being a "Subsequent Closing Date"), if and when the particular conditions attached to the occurrence of such Subsequent Closing have been fulfilled. In no event shall the Investor be under any obligation to pay any portion of the Purchase Price to the Company if the Company fails to fulfill the conditions attached thereto. The Investor may, however, at its option, waive any of the conditions to any such Subsequent Closing and proceed to closing, and become entitled to the applicable Subsequent Note and Subsequent Warrant, upon payment of the applicable portion of the Purchase Price. In addition, unless the particular condition required for a particular Subsequent Closing is waived, no Subsequent Closing shall occur until (a) the Company will have provided the Investor with not less than five business days prior written notice of the applicable Subsequent Closing Date, which shall be no later than May 4, 1998; (b) the Company shall have requested from the Investor payment of a portion of the Purchase Price equal to $100,001.76 or $200,003.52, as applicable; and (c) the Investor shall have received from the Company a certificate executed by the President of the Company, on behalf of the Company, certifying and attesting that, as of the time of the Subsequent Closing, (i) all obligations, conditions and deliveries required to have been performed, observed or made by the Company under Sections 2.2 and 2.3 as to the Initial Closing and 2.5 as to the Subsequent Closing shall have been so performed, observed or made or the Investor shall have waived the same; and (ii) that, as of such time, there does not exist any state of facts that would constitute a Default, an Impending Default or an Other Default. At any time after September 30, 2016each Subsequent Closing, the Company may from time to time request that the Purchasers purchase up shall issue a Subsequent Note and a Subsequent Warrant to the balance Investor, in the forms attached as Exhibit C and Exhibit E hereto, respectively, with the Subsequent --------- --------- Note being in a principal amount equal to $100,001.76 or $200,003.52, as applicable, against receipt of Thirty Million Dollars ($30,000,000) in value of Series D Preferred Stock not previously issued the same from the Investor and sold at the First Closing in Five Hundred Thousand Dollars ($500,000) increments. Any such request Subsequent Warrant shall be delivered registered in writing to the Purchasers who then hold Series D Preferred Stock, name of the Investor and such requested amount shall be offered pro rata to provide the Purchasers who then hold Series D Preferred Stock. Within ten (10) business days after any such written request is delivered to Investor with the Purchasers, the Purchasers who desire to fulfill such request shall respond to the Company in writing indicating the amount of such requested amount such Purchaser is willing right to purchase from the Company. Any such additional purchase shall be in the discretion an aggregate of each Purchaser. Further, any such additional purchase may be allocated by any such Purchaser among one 23,917 or more of its funds, in its discretion. If one or more Purchasers agree(s) to purchase additional amounts pursuant to this Section 1.3.2, then the Schedule of Purchasers shall be amended to reflect the amount so purchased by each such Purchaser and the date of such closing (each, a “Subsequent Closing,” and together with the First Closing, the “Closings”). Subsequent Closings shall be held at such time and place as shall be mutually agreed upon by the Company and the Purchasers who are participating in such Subsequent Closing. For purposes of this Agreement, unless the context otherwise requires, the term “Closing” shall refer, with respect to each Purchaser, to the date of the specific closing at which such Purchaser purchases 47,834 shares of Series D Preferred Stock and delivers to the Company the purchase price therefor. At a Closing, each applicable Purchaser shall deliver to the Company by check or wire transfer of immediately available funds the amount indicated opposite such Purchaser’s name on the Schedule of Purchasers, and the Company shall deliver to each such Purchaser an originally executed certificate representing the shares of Series D Preferred Stock so purchased. The Purchasers expressly acknowledge that the Company may, in its discretion, issue and sell less than or up to Thirty Million Dollars ($30,000,000) in value of the Series D Preferred Stock, as determined by applicable, subject to certain adjustments set forth in the Board of Directors of the Company in its sole and absolute discretion; provided, however, that Woodford Investment Management LLP, as agent for and on behalf of XX Xxxxxxxx Equity Income Fund, a sub fund of XX Xxxxxxxx Investment Fund and Woodford Patient Capital Trust Plc (collectively, “WIM”), shall deliver to the Company that certain Amended and Restated Promissory Note, dated as of July 18, 2016, by and between Evofem, Inc., a Delaware corporation, and Cosmederm Bioscience, Inc., a Delaware corporation (“Cosmederm”), in principal amount of Ten Million Dollars ($10,000,000) (the “Promissory Note”) for cancellation by the Company in exchange for Five Million Dollars ($5,000,000) in value of the Series D Preferred StockSubsequent Warrant.
Appears in 1 contract
Samples: Subordinated Note and Warrant Purchase Agreement (Divicore Inc)
Subsequent Closings. At any time after September 30Each Subsequent Closing shall, 2016, the Company may from time to time request that the Purchasers purchase up subject to the balance of Thirty Million Dollars ($30,000,000) applicable conditions set forth in value of Series D Preferred Stock not previously issued Section 7 and sold Section 8, take place at the First Closing in Five Hundred Thousand Dollars ($500,000) increments. Any such request offices of Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP at 10:00 a.m. New York City time on the date set forth on the applicable Follow-On Funding Notice, which date shall be delivered in writing the later of (a) fifteen (15) Business Days following the delivery of the applicable Follow-On Funding Notice and (b) the third (3rd) Business Day following the fulfillment or, to the Purchasers who then hold Series D Preferred Stockextent permitted by applicable Law, waiver of each of the conditions applicable to such Subsequent Closing set forth in Section 7 and Section 8 (other than those conditions that can be fulfilled only at such requested amount shall be offered pro rata Subsequent Closing, but subject to the Purchasers who then hold Series D Preferred Stock. Within ten (10) business days after any such written request is delivered to the Purchasers, the Purchasers who desire to fulfill such request shall respond to the Company in writing indicating the amount fulfillment or waiver of such requested amount such Purchaser is willing to purchase from the Company. Any such additional purchase shall be in the discretion of each Purchaser. Furtherconditions), any such additional purchase may be allocated by any such Purchaser among one or more of its funds, in its discretion. If one or more Purchasers agree(s) to purchase additional amounts pursuant to this Section 1.3.2, then the Schedule of Purchasers shall be amended to reflect the amount so purchased by each such Purchaser and the date of such closing (each, a “Subsequent Closing,” and together with the First Closing, the “Closings”). Subsequent Closings shall be held at such other time and place as Opco and the Investor shall mutually agree (such dates on which any Subsequent Closing actually occurs, the “Subsequent Closing Dates”), provided that if the conditions to a Subsequent Closing have not been waived or fulfilled on or prior to the twentieth (20th) Business Day following delivery of the applicable Follow-On Funding Notice, then such Subsequent Closing shall be mutually agreed deemed abandoned, unless such time period is extended by mutual agreement of the parties; provided that if, as a result of the preceding proviso, the applicable time period has expired to deliver a Follow-On Funding Notice pursuant to Section 3(a), Section 3(b), Section 3(c) or Section 3(d), the party requesting such Follow-On Funding shall have the right to extend such time period for an additional period of fifteen (15) Business Days upon written notice to the other parties hereto. At each Subsequent Closing, the Investor will deliver to Opco full payment for the Convertible Preferred Units to be issued by Opco to the Company and the Purchasers who are participating in Investor at such Subsequent Closing. For purposes of this Agreement, unless the context otherwise requires, the term “Closing” shall refer, with respect to each Purchaser, to the date of the specific closing at which such Purchaser purchases shares of Series D Preferred Stock and delivers to the Company the purchase price therefor. At a Closing, each applicable Purchaser shall deliver to the Company by check or wire transfer of immediately available funds the amount indicated opposite to an account or accounts designated by Opco in advance of such Purchaser’s name on the Schedule of Purchasers, and the Company shall deliver to each such Purchaser an originally executed certificate representing the shares of Series D Preferred Stock so purchased. The Purchasers expressly acknowledge that the Company may, in its discretion, issue and sell less than or up to Thirty Million Dollars ($30,000,000) in value of the Series D Preferred Stock, as determined by the Board of Directors of the Company in its sole and absolute discretion; provided, however, that Woodford Investment Management LLP, as agent for and on behalf of XX Xxxxxxxx Equity Income Fund, a sub fund of XX Xxxxxxxx Investment Fund and Woodford Patient Capital Trust Plc (collectively, “WIM”), shall deliver to the Company that certain Amended and Restated Promissory Note, dated as of July 18, 2016, by and between Evofem, Inc., a Delaware corporation, and Cosmederm Bioscience, Inc., a Delaware corporation (“Cosmederm”), in principal amount of Ten Million Dollars ($10,000,000) (the “Promissory Note”) for cancellation by the Company in exchange for Five Million Dollars ($5,000,000) in value of the Series D Preferred StockSubsequent Closing Date.
Appears in 1 contract
Samples: Securities Purchase Agreement (American Realty Capital Hospitality Trust, Inc.)
Subsequent Closings. At The Company may enter into Other Subscription Agreements with Other Investors after the initial Drawdown Date, with any time after September 30closing thereunder referred to as a “Subsequent Closing” and any Other Investor whose subscription has been accepted at such Subsequent Closing referred to as a “Subsequent Investor.” On one or more dates to be determined by the Company that occur on or following the Subsequent Closing (each such date, 2016a “Catch-Up Date”), each Subsequent Investor which enters into a Capital Commitment with the Company may from time to time request that be required, in the Purchasers purchase up to the balance of Thirty Million Dollars ($30,000,000) in value of Series D Preferred Stock not previously issued and sold at the First Closing in Five Hundred Thousand Dollars ($500,000) increments. Any such request shall be delivered in writing to the Purchasers who then hold Series D Preferred StockCompany’s sole discretion, and such requested amount shall be offered pro rata to the Purchasers who then hold Series D Preferred Stock. Within ten (10) business days after any such written request is delivered to the Purchasers, the Purchasers who desire to fulfill such request shall respond to the Company in writing indicating the amount of such requested amount such Purchaser is willing to purchase from the Company. Any Company a number of Shares with an aggregate purchase price necessary to ensure that, upon payment of the aggregate purchase price for such additional purchase Shares by the Subsequent Investor on such Catch- Up Date(s), such Subsequent Investor’s Invested Percentage (as defined below) shall be in equal to the discretion Invested Percentage of each Purchaser. Further, any such additional purchase may be allocated by any such Purchaser among one or more of its funds, in its discretion. If one or more Purchasers agree(s) to purchase additional amounts pursuant to this Section 1.3.2, then the Schedule of Purchasers shall be amended to reflect the amount so purchased by each such Purchaser and the date of such closing (each, a “Subsequent Closing,” and together all prior Investors which have entered into Capital Commitments with the First ClosingCompany (other than any Defaulting Investor (as defined below)) (such amount, the “ClosingsCatch-Up Purchase Price” and such purchase, the “Catch-Up Purchase”). Subsequent Closings shall be held at Upon payment of all or a portion of the Catch-Up Purchase Price by such time and place as shall be mutually agreed upon by the Company and the Purchasers who are participating in such Subsequent Closing. For purposes of this Agreementan Investor on a Catch-Up Date, unless the context otherwise requires, the term “ClosingInvested Percentage” shall refermeans, with respect to each Purchaseran Investor, to the date quotient determined by dividing (i) the aggregate amount of the specific closing at which contributions made by such Purchaser purchases shares of Series D Preferred Stock and delivers to the Company the purchase price thereforInvestor by (ii) such Investor’s Capital Commitment. At a Closing, each applicable Purchaser shall deliver to the Company by check or wire transfer of immediately available funds the amount indicated opposite such Purchaser’s name on the Schedule of Purchasers, and the Company shall deliver to each such Purchaser an originally executed certificate representing the shares of Series D Preferred Stock so purchased. The Purchasers expressly acknowledge that the Company Catch-Up Purchases may, in its discretion, issue and sell less than or up to Thirty Million Dollars ($30,000,000) in value of the Series D Preferred Stock, as determined by the Board of Directors sole discretion of the Company in its sole be priced above NAV to seek to appropriately allocate the initial organizational and absolute discretion; provided, however, that Woodford Investment Management LLP, as agent for and on behalf of XX Xxxxxxxx Equity Income Fund, a sub fund of XX Xxxxxxxx Investment Fund and Woodford Patient Capital Trust Plc (collectively, “WIM”), shall deliver to the Company that certain Amended and Restated Promissory Note, dated as of July 18, 2016, by and between Evofem, Inc., a Delaware corporation, and Cosmederm Bioscience, Inc., a Delaware corporation (“Cosmederm”), in principal amount of Ten Million Dollars ($10,000,000) (the “Promissory Note”) for cancellation by the Company in exchange for Five Million Dollars ($5,000,000) in value offering expenses of the Series D Preferred StockCompany.
Appears in 1 contract
Samples: Subscription Agreement (Andalusian Credit Company, LLC)
Subsequent Closings. At The purchase and sale of the 637,731 Shares for which the Services Consideration is to be paid (as such amount may be appropriately adjusted to reflect any time after September 30stock split, 2016reverse split, stock dividend or other reclassification or recapitalization affecting the capital stock of the company, the Company may record date of which shall occur after the date of this Agreement) (the "Remaining Shares") shall take place in installments from time to time request that time, but not more frequently than once in each fiscal quarter, following the Purchasers purchase up to execution and delivery of the balance of Thirty Million Dollars ($30,000,000) in value of Series D Preferred Stock not previously issued and sold at the First Closing in Five Hundred Thousand Dollars ($500,000) increments. Any such request shall be delivered in writing to the Purchasers who then hold Series D Preferred StockServices Agreement, and such requested amount shall be offered pro rata to the Purchasers who then hold Series D Preferred Stock. Within ten (10) business days after any such written request is delivered to the Purchasers, the Purchasers who desire to fulfill such request shall respond to the Company in writing indicating the amount of such requested amount such Purchaser is willing to purchase from the Company. Any such additional purchase shall be in the discretion of each Purchaser. Further, any such additional purchase may be allocated by any such Purchaser among one or more of its funds, in its discretion. If one or more Purchasers agree(s) to purchase additional amounts pursuant to this Section 1.3.2, then the Schedule of Purchasers shall be amended to reflect the amount so purchased by each such Purchaser and the date of such closing (each, a “Subsequent Closing,” and together with the First Closing, the “Closings”). Subsequent Closings shall be held at such time places and place dates as the parties shall be mutually agreed upon by the Company and the Purchasers who are participating in such Subsequent Closing. For purposes of this Agreement, unless the context otherwise requires, the term “Closing” shall refer, with respect to each Purchaser, to the date of the specific closing at which such Purchaser purchases shares of Series D Preferred Stock and delivers to the Company the purchase price therefor. At a Closing, each applicable Purchaser shall deliver to the Company by check or wire transfer of immediately available funds the amount indicated opposite such Purchaser’s name on the Schedule of Purchasers, and the Company shall deliver to each such Purchaser an originally executed certificate representing the shares of Series D Preferred Stock so purchased. The Purchasers expressly acknowledge that the Company may, in its discretion, issue and sell less than or up to Thirty Million Dollars ($30,000,000) in value of the Series D Preferred Stock, as determined by the Board of Directors of the Company in its sole and absolute discretionagree; provided, however, that Woodford Investment Management LLPin the event the parties do not agree upon the date for such purchases and sales, such purchases and sales shall take place on the fifteenth (15th) business day following the end of each fiscal quarter of the Company. Each such purchase and sale following the Initial Closing is hereinafter referred to as agent for a "Subsequent Closing," and on behalf of XX Xxxxxxxx Equity Income Fundthe date upon which such Subsequent Closing occurs (or is scheduled to occur) is hereinafter referred to as a "Subsequent Closing Date." At each Subsequent Closing, a sub fund of XX Xxxxxxxx Investment Fund and Woodford Patient Capital Trust Plc (collectively, “WIM”), shall the Company will deliver to TDC a certificate registered in the Company name of TDC (or such other wholly-owned subsidiary of TCI as TCI may direct) evidencing that certain Amended and Restated Promissory Note, dated as number of July 18, 2016, by and between Evofem, Inc., a Delaware corporation, and Cosmederm Bioscience, Inc., a Delaware corporation (“Cosmederm”), in principal amount of Ten Million Dollars ($10,000,000) (Shares that is equal to the “Promissory Note”) for cancellation by the Company in exchange for Five Million Dollars ($5,000,000) in value of the Series D Preferred Stockservices theretofore rendered by TCI and its affiliates (pursuant to and as determined in accordance with the Services Agreement) which are then unpaid, divided by the Per Share Purchase Price (the Remaining Shares issued at each Subsequent Closing being hereinafter referred to as the "Subsequent Closing Shares"); provided, however, that the Company's obligation to issue Subsequent Closing Shares, and TDC's obliga- tion to purchase such Shares and render services in payment therefor, shall terminate at such time as the aggregate number of Subsequent Closing Shares issued pursuant to this Section 2.3 is equal to the number of Remaining Shares.
Appears in 1 contract
Samples: Stock Purchase Agreement (At&t Corp)
Subsequent Closings. At The Fund may enter into Other Subscription Agreements with Other Investors after the Closing, with any time after September 30closing thereunder referred to as a “Subsequent Closing” and any Other Investor whose subscription has been accepted at such Subsequent Closing referred to as a “Subsequent Investor.” On one or more dates to be determined by the Fund that occur on or following the Subsequent Closing (each such date, 2016a “Catch-Up Date”), each Subsequent Investor which enters into a Capital Commitment with the Company Fund may from time to time request that be required, in the Purchasers purchase up to the balance of Thirty Million Dollars ($30,000,000) in value of Series D Preferred Stock not previously issued and sold at the First Closing in Five Hundred Thousand Dollars ($500,000) increments. Any such request shall be delivered in writing to the Purchasers who then hold Series D Preferred StockFund’s sole discretion, and such requested amount shall be offered pro rata to the Purchasers who then hold Series D Preferred Stock. Within ten (10) business days after any such written request is delivered to the Purchasers, the Purchasers who desire to fulfill such request shall respond to the Company in writing indicating the amount of such requested amount such Purchaser is willing to purchase from the Company. Any Fund a number of Shares with an aggregate purchase price necessary to ensure that, upon payment of the aggregate purchase price for such additional purchase Shares by the Subsequent Investor on such Catch-Up Date(s), such Subsequent Investor’s Invested Percentage (as defined below) shall be equal to the Invested Percentage of all prior Investors which have entered into Capital Commitments with the Fund (other than any Defaulting Investors (as defined below) or Excluded Investors (as defined below)) (such amount, the “Catch-Up Purchase Price” and such purchase, the “Catch-Up Purchase”). Upon payment of all or a portion of the Catch-Up Purchase Price by such an Investor on a Catch-Up Date, the Fund shall issue to each such Subsequent Investor a number of Shares equal to the portion of the Catch-Up Purchase Price paid divided by the then-current transaction price per Share as of such Catch-Up Date, determined in accordance with the discretion provisions of each PurchaserSection 3(c). Further, any such additional purchase may be allocated by any such Purchaser among one or more of its fundsUnless the Fund determines otherwise, in its sole discretion, Investors that make a Capital Commitment prior to any Subsequent Closing will not be required to fund Drawdown Purchases on a Drawdown Date until all Subsequent Investors have made their entire Catch-Up Purchase. If one or more Purchasers agree(s) to purchase additional amounts pursuant to For the avoidance of doubt, in the event that the Catch-Up Date and a Drawdown Date occur on the same calendar day, such Catch-Up Date and the application of the provisions of this Section 1.3.2, then the Schedule of Purchasers 3(e) shall be amended deemed to reflect have occurred immediately prior to the amount so purchased by each such Purchaser and the date of such closing (each, a relevant Drawdown Date. “Subsequent Closing,Invested Percentage” and together with the First Closing, the “Closings”). Subsequent Closings shall be held at such time and place as shall be mutually agreed upon by the Company and the Purchasers who are participating in such Subsequent Closing. For purposes of this Agreement, unless the context otherwise requires, the term “Closing” shall refermeans, with respect to each Purchaseran Investor, to the date of the specific closing at which such Purchaser purchases shares of Series D Preferred Stock and delivers to the Company the purchase price therefor. At a Closing, each applicable Purchaser shall deliver to the Company by check or wire transfer of immediately available funds the amount indicated opposite such Purchaser’s name on the Schedule of Purchasers, and the Company shall deliver to each such Purchaser an originally executed certificate representing the shares of Series D Preferred Stock so purchased. The Purchasers expressly acknowledge that the Company may, in its discretion, issue and sell less than or up to Thirty Million Dollars ($30,000,000) in value of the Series D Preferred Stock, as quotient determined by dividing (i) the Board of Directors of the Company in its sole and absolute discretion; provided, however, that Woodford Investment Management LLP, as agent for and on behalf of XX Xxxxxxxx Equity Income Fund, a sub fund of XX Xxxxxxxx Investment Fund and Woodford Patient Capital Trust Plc (collectively, “WIM”), shall deliver to the Company that certain Amended and Restated Promissory Note, dated as of July 18, 2016, by and between Evofem, Inc., a Delaware corporation, and Cosmederm Bioscience, Inc., a Delaware corporation (“Cosmederm”), in principal aggregate amount of Ten Million Dollars contributions made by such Investor by ($10,000,000ii) (the “Promissory Note”) for cancellation by the Company in exchange for Five Million Dollars ($5,000,000) in value of the Series D Preferred Stocksuch Investor’s Capital Commitment.
Appears in 1 contract
Samples: Subscription Agreement (KKR FS Income Trust Select)
Subsequent Closings. At any time after September 30, 2016, The obligation of each Buyer listed in column two (2) on the Company may from time Schedule of Buyers to time request that purchase the Purchasers purchase up Notes at each Subsequent Closing is subject to the balance satisfaction, at or before each Subsequent Closing Date, of Thirty Million Dollars each of the following conditions:
($30,000,000a) Each Company, as applicable, shall have executed and delivered to such Buyer (i) the Notes (in value of Series D Preferred Stock not previously issued and sold such denominations as such Buyer shall have requested prior to the Subsequent Closing) being purchased by such Buyer at the First Subsequent Closing in Five Hundred Thousand Dollars ($500,000) increments. Any such request shall be delivered in writing pursuant to the Purchasers who then hold Series D Preferred Stockthis Agreement, and (ii) each of the other Transaction Documents.
(b) The Agent shall have received the opinions of the Companies’ Outside Legal Counsel, dated the Subsequent Closing Date, in form and substance satisfactory to such requested amount Agent.
(c) Each Company shall be offered pro rata to the Purchasers who then hold Series D Preferred Stock. Within ten (10) business days after any such written request is have executed and delivered to the PurchasersAgent a certificate evidencing the formation or incorporation and good standing of such Company in such entity’s jurisdiction of formation or incorporation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date reasonably proximate to the Subsequent Closing Date.
(d) Each Company shall have delivered to the Agent a certificate evidencing such Company’s qualification as a foreign corporation or other entity and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which such Company conducts business, as of a date reasonably proximate to the Subsequent Closing Date.
(e) Each Company shall have executed and delivered, or caused to be delivered to the Agent a certificate as to the fact that no action has been taken with respect to any merger, consolidation, liquidation or dissolution of such Company, or with respect to the sale of substantially all of its assets, nor is any such action pending or contemplated.
(f) Each Company shall have delivered to the Agent a certified copy of such Company’s certificate or articles of incorporation (or other applicable governing document), as certified by the Secretary of State (or comparable office) of such entity’s jurisdiction of formation or incorporation, reasonably proximate to the Subsequent Closing Date.
(g) Each Company shall have deliver or caused to be delivered to Agent executed a certificated signed by the Secretary of such Company and dated the Subsequent Closing Date, as to (i) the resolutions adopted by such Company’s board of directors (or other governing body) in a form reasonably acceptable to the Agent, (ii) such Company’s articles or certificate of incorporation (or other applicable governing document), (iii) such Company’s bylaws (or other applicable governing document), each as in effect at the Subsequent Closing and (iv) no action having been taken by such Company or its stockholders, directors or officers in contemplation of any amendments to items (i), (ii), or (iii) listed in this Section 5.2(g), as certified, in the form attached hereto as Exhibit J.
(h) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Subsequent Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Subsequent Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market.
(i) Each of the Companies shall have obtained all governmental, regulatory and third party consents and approvals, if any, necessary for the sale of the Securities at the Subsequent Closing.
(j) Each of the Companies shall have obtained and delivered to the Agent searches of UCC filings in the jurisdictions of formation or incorporation of each of the Companies, the Purchasers who desire jurisdiction of the chief executive offices of each of the Companies and each jurisdiction where any Collateral (as defined in the Security Agreement) is located or where a filing would need to fulfill be made in order to perfect the Buyers’ security interest in the Collateral, copies of the financing statements on file in such request jurisdictions and evidence that no Liens exist other than Permitted Liens.
(k) Each of the Companies shall respond have executed and delivered to the Company Agent, UCC financing statements for each appropriate jurisdiction as is necessary, in writing indicating the amount of such requested amount such Purchaser is willing Agent’s sole discretion, to purchase from perfect the Company. Any such additional purchase Buyers’ security interest in the Collateral.
(l) The Companies shall have delivered a Borrowing Base Certificate to the Agent, which shall be in form and substance satisfactory to the discretion Buyers.
(m) The Agent shall have received a certification from the chief financial officer of the Parent in form and substance satisfactory to the Buyers, supporting the conclusions that after giving effect to the transactions contemplated by the Transaction Documents the Parent and each of its Subsidiaries are not Insolvent.
(n) The representations and warranties of each PurchaserCompany shall be true and correct as of the date when made and as of the Subsequent Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date), and each Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by each Company at or prior to the Subsequent Closing Date. FurtherThe Agent shall have received certificates, any executed by the Chief Executive Officer of each Company, dated the Subsequent Closing Date, to the foregoing effect and as to such additional purchase other matters as may be allocated reasonably requested by any such Purchaser among one or more of its fundsBuyer, in its discretion. If one the form attached hereto as Exhibit K.
(o) No Event of Default (or more Purchasers agree(sevent or circumstance that, with the passage of time, the giving of notice, or both, would become an Event of Default) to purchase additional amounts pursuant to this Section 1.3.2, then shall have occurred and be continuing or would result from the Schedule issuance of Purchasers shall be amended to reflect the amount so purchased by each such Purchaser and Notes at the date of such closing (each, a “Subsequent Closing,” ; and together with there shall have been no event or occurrence or series of events or occurrences that, singularly or in the aggregate, has had or could reasonably be expected to have Material Adverse Effect. The Agent shall have received certificates, executed by the Chief Executive Officer of each Company, dated the Subsequent Closing Date, to the foregoing effect.
(p) Since the First Closing, the “Closings”). Subsequent Closings there shall have been no change which has had or could reasonably be held at such time and place as shall be mutually agreed upon by the Company and the Purchasers who are participating in such Subsequent Closing. For purposes of this Agreement, unless the context otherwise requires, the term “Closing” shall refer, with respect expected to each Purchaser, to the date of the specific closing at which such Purchaser purchases shares of Series D Preferred Stock and delivers to the Company the purchase price therefor. At have a Closing, each applicable Purchaser shall deliver to the Company by check or wire transfer of immediately available funds the amount indicated opposite such Purchaser’s name on the Schedule of Purchasers, and the Company shall deliver to each such Purchaser an originally executed certificate representing the shares of Series D Preferred Stock so purchased. The Purchasers expressly acknowledge that the Company may, in its discretion, issue and sell less than or up to Thirty Million Dollars ($30,000,000) in value of the Series D Preferred StockMaterial Adverse Effect, as determined by in the Board of Directors Agent’s sole discretion or any disruption or adverse change in the financial, banking and/or capital markets that, in the sole judgment of the Company in its sole Agent, could impair the syndication and/or the market value for the Notes.
(q) Each of the Companies shall have delivered to such Buyer and absolute discretion; providedthe Agent such other documents relating to the transactions contemplated by this Agreement as such Buyer, however, that Woodford Investment Management LLPthe Agent or either of their counsel, as agent for and on behalf of XX Xxxxxxxx Equity Income Fundapplicable, a sub fund of XX Xxxxxxxx Investment Fund and Woodford Patient Capital Trust Plc (collectively, “WIM”), shall deliver to the Company that certain Amended and Restated Promissory Note, dated as of July 18, 2016, by and between Evofem, Inc., a Delaware corporation, and Cosmederm Bioscience, Inc., a Delaware corporation (“Cosmederm”), in principal amount of Ten Million Dollars ($10,000,000) (the “Promissory Note”) for cancellation by the Company in exchange for Five Million Dollars ($5,000,000) in value of the Series D Preferred Stockmay reasonably request.
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Subsequent Closings. At If any time after September 30, 2016of the authorized shares of Series B Preferred are not sold at the Initial Closing, the Company may from time to time request that shall have the Purchasers purchase up to the balance of Thirty Million Dollars ($30,000,000) in value of Series D Preferred Stock not previously issued and sold right, at the First Closing in Five Hundred Thousand Dollars ($500,000) increments. Any such request shall be delivered in writing to the Purchasers who then hold Series D Preferred Stock, and such requested amount shall be offered pro rata to the Purchasers who then hold Series D Preferred Stock. Within ten (10) business days after any such written request is delivered to the Purchasers, the Purchasers who desire to fulfill such request shall respond to the Company in writing indicating the amount of such requested amount such Purchaser is willing to purchase from the Company. Any such additional purchase shall be in the discretion of each Purchaser. Further, any such additional purchase may be allocated by any such Purchaser among one or more of its funds, in its discretion. If one or more Purchasers agree(s) to purchase additional amounts pursuant to this Section 1.3.2, then the Schedule of Purchasers shall be amended to reflect the amount so purchased by subsequent closings (each such Purchaser and the date of such closing (each, a “Subsequent Closing,” and together with the First Closingtogether, the “Subsequent Closings”). Subsequent Closings shall ) to be held at such time and place as shall be mutually agreed upon by within one hundred eighty (180) days of the Company and the Purchasers who are participating in such Subsequent Closing. For purposes of this Agreement, unless the context otherwise requires, the term “Closing” shall refer, with respect to each PurchaserInitial Closing Date, to sell the date of the specific closing at which such Purchaser purchases remaining authorized but unissued shares of Series D B Preferred Stock and delivers to the Company the purchase price therefor. At a Closing, each applicable Purchaser shall deliver to the Company by check one or wire transfer of immediately available funds the amount indicated opposite such Purchaser’s name on the Schedule of Purchasers, and the Company shall deliver to each such Purchaser an originally executed certificate representing the shares of Series D Preferred Stock so purchased. The Purchasers expressly acknowledge that the Company may, in its discretion, issue and sell less than or up to Thirty Million Dollars ($30,000,000) in value of the Series D Preferred Stock, more additional purchasers as determined by the Board Company but who shall not be Advanced Digital Information Corporation, Overland Storage, Inc. or Storage Tech, Inc., or to a Purchaser hereunder who wishes to acquire additional shares of Directors Series B Preferred. All such sales shall be made on the terms and conditions set forth in this Agreement, and all of the Company in its sole and absolute discretion; providedancillary agreements contemplated hereby, howeverincluding, that Woodford Investment Management LLPwithout limitation, as agent for and on behalf of XX Xxxxxxxx Equity Income Fund, a sub fund of XX Xxxxxxxx Investment Fund and Woodford Patient Capital Trust Plc (collectively, “WIM”), shall deliver to the Company that certain Amended and Restated Promissory Note, dated Investor Rights Agreement in substantially the form attached hereto as of July 18, 2016, by and between Evofem, Inc., a Delaware corporation, and Cosmederm Bioscience, Inc., a Delaware corporation (“Cosmederm”), in principal amount of Ten Million Dollars ($10,000,000) Exhibit D (the “Promissory NoteInvestor Rights Agreement”) for cancellation and the Amended and Restated Voting Agreement (the “Voting Agreement”) in substantially the form attached hereto as Exhibit E, and the representations and warranties by the Company as set forth in exchange Section 3 hereof and by the Purchasers as set forth in Section 4 hereof, such that any and all provisions of this Agreement that relate to the Initial Closing will also apply to such sales. Each investor who purchases Series B Preferred at a Subsequent Closing shall sign a signature page to this Agreement and will thereby be deemed to be a “Purchaser” for Five Million Dollars ($5,000,000) in value all purposes under this Agreement and shall sign the Investor Rights Agreement, Voting Agreement and such other documents as reasonably requested by the Company. The terms “Closing” and “Closing Date” shall refer to the closing of the purchase and sale of Series D B Preferred Stockand/or issuance of Series A-1 Preferred with respect to a particular Purchaser, irrespective of whether such purchase and sale takes place at the Initial Closing or a Subsequent Closing.
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Samples: Series B Preferred Stock Purchase and Recapitalization Agreement (Quantum Corp /De/)
Subsequent Closings. At any time after September 30, 2016, The obligation of each Buyer listed in column two (2) on the Company may from time Schedule of Buyers to time request that purchase the Purchasers purchase up Notes at each Subsequent Closing is subject to the balance satisfaction, at or before each Subsequent Closing Date, of Thirty Million Dollars each of the following conditions:
($30,000,000a) Each Company, as applicable, shall have executed and delivered to such Buyer (i) the Notes (in value of Series D Preferred Stock not previously issued and sold such denominations as such Buyer shall have requested prior to the Subsequent Closing) being purchased by such Buyer at the First Subsequent Closing in Five Hundred Thousand Dollars ($500,000) increments. Any such request shall be delivered in writing pursuant to the Purchasers who then hold Series D Preferred Stockthis Agreement, and (ii) each of the other Transaction Documents.
(b) The Agent shall have received the opinions of the Companies’ Outside Legal Counsel, dated the Subsequent Closing Date, in form and substance satisfactory to such requested amount Agent.
(c) Each Company shall be offered pro rata to the Purchasers who then hold Series D Preferred Stock. Within ten (10) business days after any such written request is have executed and delivered to the PurchasersAgent a certificate evidencing the formation or incorporation and good standing of such Company in such entity’s jurisdiction of formation or incorporation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date reasonably proximate to the Subsequent Closing Date.
(d) Each Company shall have delivered to the Agent a certificate evidencing such Company’s qualification as a foreign corporation or other entity and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which such Company conducts business, as of a date reasonably proximate to the Subsequent Closing Date.
(e) Each Company shall have executed and delivered, or caused to be delivered to the Agent a certificate as to the fact that no action has been taken with respect to any merger, consolidation, liquidation or dissolution of such Company, or with respect to the sale of substantially all of its assets, nor is any such action pending or contemplated.
(f) Each Company shall have delivered to the Agent a certified copy of such Company’s certificate or articles of incorporation (or other applicable governing document), as certified by the Secretary of State (or comparable office) of such entity’s jurisdiction of formation or incorporation, reasonably proximate to the Subsequent Closing Date.
(g) Each Company shall have deliver or caused to be delivered to Agent executed a certificated signed by the Secretary of such Company and dated the Subsequent Closing Date, as to (i) the resolutions adopted by such Company’s board of directors (or other governing body) in a form reasonably acceptable to the Agent, (ii) such Company’s articles or certificate of incorporation (or other applicable governing document), (iii) such Company’s bylaws (or other applicable governing document), each as in effect at the Subsequent Closing and (iv) no action having been taken by such Company or its stockholders, directors or officers in contemplation of any amendments to items (i), (ii), or (iii) listed in this Section 5.2(g), as certified, in the form attached hereto as Exhibit J.
(h) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Subsequent Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Subsequent Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market.
(i) Each of the Companies shall have obtained all governmental, regulatory and third party consents and approvals, if any, necessary for the sale of the Securities at the Subsequent Closing.
(j) Each of the Companies shall have obtained and delivered to the Agent searches of UCC filings in the jurisdictions of formation or incorporation of each of the Companies, the Purchasers who desire jurisdiction of the chief executive offices of each of the Companies and each jurisdiction where any Collateral (as defined in the Security Agreement) is located or where a filing would need to fulfill be made in order to perfect the Buyers’ security interest in the Collateral, copies of the financing statements on file in such request jurisdictions and evidence that no Liens exist other than Permitted Liens.
(k) Each of the Companies shall respond have executed and delivered to the Company Agent, UCC financing statements for each appropriate jurisdiction as is necessary, in writing indicating the amount of such requested amount such Purchaser is willing Agent’s sole discretion, to purchase from perfect the Company. Any such additional purchase Buyers’ security interest in the Collateral.
(l) The Companies shall have delivered a Borrowing Base Certificate to the Agent, which shall be in form and substance satisfactory to the Buyers and, unless the Buyers agree in their sole discretion to permit an Overadvance, show that the outstanding principal amount of Revolving Notes shall not exceed the Borrowing Base after giving effect to such Subsequent Closing.
(m) The Agent shall have received a certification from the chief financial officer of the Parent in form and substance satisfactory to the Buyers, supporting the conclusions that after giving effect to the transactions contemplated by the Transaction Documents the Parent and each of its Subsidiaries are not Insolvent.
(n) The representations and warranties of each PurchaserCompany shall be true and correct as of the date when made and as of the Subsequent Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date), and each Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by each Company at or prior to the Subsequent Closing Date. FurtherThe Agent shall have received certificates, any executed by the Chief Executive Officer of each Company, dated the Subsequent Closing Date, to the foregoing effect and as to such additional purchase other matters as may be allocated reasonably requested by any such Purchaser among one or more of its fundsBuyer, in its discretion. If one the form attached hereto as Exhibit K.
(o) No Event of Default (or more Purchasers agree(sevent or circumstance that, with the passage of time, the giving of notice, or both, would become an Event of Default) to purchase additional amounts pursuant to this Section 1.3.2, then shall have occurred and be continuing or would result from the Schedule issuance of Purchasers shall be amended to reflect the amount so purchased by each such Purchaser and Notes at the date of such closing (each, a “Subsequent Closing,” ; and together with there shall have been no event or occurrence or series of events or occurrences that, singularly or in the aggregate, has had or could reasonably be expected to have Material Adverse Effect. The Agent shall have received certificates, executed by the Chief Executive Officer of each Company, dated the Subsequent Closing Date, to the foregoing effect.
(p) Since the First Closing, the “Closings”). Subsequent Closings there shall have been no change which has had or could reasonably be held at such time and place as shall be mutually agreed upon by the Company and the Purchasers who are participating in such Subsequent Closing. For purposes of this Agreement, unless the context otherwise requires, the term “Closing” shall refer, with respect expected to each Purchaser, to the date of the specific closing at which such Purchaser purchases shares of Series D Preferred Stock and delivers to the Company the purchase price therefor. At have a Closing, each applicable Purchaser shall deliver to the Company by check or wire transfer of immediately available funds the amount indicated opposite such Purchaser’s name on the Schedule of Purchasers, and the Company shall deliver to each such Purchaser an originally executed certificate representing the shares of Series D Preferred Stock so purchased. The Purchasers expressly acknowledge that the Company may, in its discretion, issue and sell less than or up to Thirty Million Dollars ($30,000,000) in value of the Series D Preferred StockMaterial Adverse Effect, as determined by in the Board of Directors Agent’s sole discretion or any disruption or adverse change in the financial, banking and/or capital markets that, in the sole judgment of the Company in its sole Agent, could impair the syndication and/or the market value for the Notes.
(q) Each of the Companies shall have delivered to such Buyer and absolute discretion; providedthe Agent such other documents relating to the transactions contemplated by this Agreement as such Buyer, however, that Woodford Investment Management LLPthe Agent or either of their counsel, as agent for and on behalf of XX Xxxxxxxx Equity Income Fundapplicable, a sub fund of XX Xxxxxxxx Investment Fund and Woodford Patient Capital Trust Plc (collectively, “WIM”), shall deliver to the Company that certain Amended and Restated Promissory Note, dated as of July 18, 2016, by and between Evofem, Inc., a Delaware corporation, and Cosmederm Bioscience, Inc., a Delaware corporation (“Cosmederm”), in principal amount of Ten Million Dollars ($10,000,000) (the “Promissory Note”) for cancellation by the Company in exchange for Five Million Dollars ($5,000,000) in value of the Series D Preferred Stockmay reasonably request.
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