Conditions to the Company’s Obligation to Sell. The obligation of the Company hereunder to issue and sell the Note to the Buyer at the Closing is subject to the satisfaction, at or before the Closing Date of each of the following conditions thereto, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion: a. The Buyer shall have executed this Agreement and delivered the same to the Company. b. The Buyer shall have delivered the Purchase Price in accordance with Sect
...ion 1(b) above. c. The representations and warranties of the Buyer shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and the Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Buyer at or prior to the Closing Date. d. No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement.
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Conditions to the Company’s Obligation to Sell.
(a) The obligation of the Company hereunder to issue and sell the
Note Initial Notes and the related Warrants to
the each Buyer at the
Initial Closing is subject to the satisfaction, at or before the
Initial Closing
Date Date, of each of the following
conditions thereto, conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole
discretion: a. The discretion by providing each Buyer with prior written notice thereof: 28 (...i) Such Buyer shall have executed this Agreement each of the other Transaction Documents to which it is a party and delivered the same to the Company. b. The (ii) Such Buyer and each other Buyer shall have delivered to the Company the Purchase Price (less, in the case of any Buyer, the amounts withheld pursuant to Section 4(g)) for the Initial Note and the related Warrants being purchased by such Buyer at the Initial Closing by wire transfer of immediately available funds in accordance with Section 1(b) above. c. the Initial Flow of Funds Letter. (iii) The representations and warranties of the such Buyer shall be true and correct in all material respects as of the date when made and as of the Initial Closing Date as though originally 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 the such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the such Buyer at or prior to the Initial Closing Date. d. No litigation, statute, rule, regulation, executive order, decree, ruling (b) The obligation of the Company hereunder to issue and sell the Additional Notes to each Buyer at the applicable Additional Closing is subject to the satisfaction, at or injunction before such Additional Closing Date, of each of the following conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice thereof: (i) Such Buyer shall have been enacted, entered, promulgated or endorsed by or executed each of the other Transaction Documents to which it is a party and delivered the same to the Company. (ii) Such Buyer and each other Buyer shall have delivered to the Company the Purchase Price (less, in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation case of any Buyer, the amounts withheld pursuant to Section 4(g)) for the Additional Note being purchased by such Buyer at such Additional Closing by wire transfer of immediately available funds in accordance with the Additional Flow of Funds Letter. (iii) The representations and warranties of such Buyer shall be true and correct in all material respects as of the transactions contemplated date when made and as of such Additional Closing Date as though originally 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 such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement. Agreement to be performed, satisfied or complied with by such Buyer at or prior to such Additional Closing Date.
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Conditions to the Company’s Obligation to Sell.
(a) The obligation of the Company hereunder to issue and sell the Note
and the Warrants to the
Buyer Investor at the
Closing Closing, and the obligation of the Company to issue and sell the Additional Note and the Additional Warrants to the Investor at the applicable time set forth in this Agreement (if the Company is required to do so under this Agreement), is subject to the satisfaction,
at on or before the Closing
Date Date, of each of the following
conditions thereto, conditions, provided th
...at these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion: a. discretion by providing the Investor with prior written notice thereof: (i) The Buyer Investor shall have executed this Agreement and each of the other Transaction Documents to which it is a party and delivered the same to the Company. b. (ii) The Buyer Investor shall have delivered to the Company the Purchase Price in accordance with (less the amounts withheld pursuant to Section 1(b) above. c. 4(g)) for the Note and the Warrants being purchased by the Investor at the Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company. 39 (iii) The representations and warranties of the Buyer Investor shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally 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 date), and the Buyer Investor shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Buyer at Investor on or prior to the Closing Date. d. No litigation, statute, rule, regulation, executive order, decree, ruling or injunction (b) If the Investor shall have been enacted, entered, promulgated or endorsed by or timely delivered to the Company the notice of its election to purchase the Additional Note and the Additional Warrants in any court or governmental authority accordance with the first sentence of competent jurisdiction or any self-regulatory organization having authority over Section 1(b), the matters contemplated hereby which prohibits the consummation of any obligation of the transactions contemplated Company hereunder to issue and sell the Additional Note and the Additional Warrants to the Investor at the Additional Closing is subject to the satisfaction, on or before the Additional Closing Date, of each of the following conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion by providing the Investor with prior written notice thereof: (i) The Company shall not have publicly disclosed in a registration statement filed by the Company with the SEC under the 1933 Act that the Qualified Offering Date for a Qualified Offering shall occur prior to the ninety-first (91st) Business Day immediately following the Closing Date; (ii) The Investor shall have delivered to the Company the Additional Purchase Price for the Additional Note and the Additional Warrants being purchased by the Investor at the Additional Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company. (iii) The representations and warranties of the Investor shall be true and correct in all material respects as of the date when made and as of the Additional Closing Date as though originally 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 date), and the Investor shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement. Agreement to be performed, satisfied or complied with by the Investor on or prior to the Additional Closing Date.
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Conditions to the Company’s Obligation to Sell. The obligation of the Company hereunder to issue and sell the
Note Convertible Debenture to the
Buyer Investor at the Closing is subject to the satisfaction, at or before the Closing
Date Date, of each of the following
conditions thereto, conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion:
a. (a) The
Buyer Investor shall have executed
this Agreement the Transaction Documents and delivered
the same them... to the Company. b. (b) The Buyer Investor shall have delivered to the Company the Purchase Price in accordance with Section 1(b) above. c. for the Convertible Debenture, minus any fees to be paid directly from the proceeds the Closing as set forth herein, by wire transfer of immediately available U.S. funds pursuant to the wire instructions provided by the Company. (c) The representations and warranties of the Buyer Investor shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and the Buyer Investor shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Buyer Investor at or prior to the Closing Date. d. No litigation, statute, rule, regulation, executive order, decree, ruling 21 8. CONDITIONS TO THE INVESTOR'S OBLIGATION TO PURCHASE. (a) The obligation of the Investor hereunder to purchase the Convertible Debenture at the Closing is subject to the satisfaction, at or injunction before the Closing Date, of each of the following conditions, provided that these conditions are for the Investor's sole benefit and may be waived by the Investor at any time in its sole discretion: (a) The Company, and the Company's Transfer Agent as applicable, shall have executed the Transaction Documents and delivered the same to the Investor. (b) The Company shall have issued the Warrant to the Investor's Designee. (c) The Company shall have entered into the MOU. (d) The Company shall have provided to and the Investor shall have approved all Form 8-Ks and press releases to be filed in connection with this Agreement and the MOU. (e) The Common Stock shall be authorized for quotation or trading on the Primary Market, trading in the Common Stock shall not have been enacted, entered, promulgated or endorsed by or suspended for any reason. (f) The representations and warranties of the Company shall be true and correct in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over all material respects (except to the matters contemplated hereby which prohibits the consummation of extent that any of such representations and warranties is already qualified as to materiality in Section 4 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the transactions contemplated date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement. Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date. (g) The Company shall have executed and delivered to the Investor the Convertible Debenture. (h) The Investor shall have received an opinion of counsel from counsel to the Company in a form satisfactory to the Investor. (i) The Company shall have provided to the Investor an executed Officer's Certificate in a form satisfactory to the Investor. (j) The Company shall have provided Investor a true copy of a certificate of good standing evidencing the formation and good standing of the Company from the secretary of state (or comparable office) from the jurisdiction in which the Company is incorporated, as of a date within 10 days of the Closing Date. (k) The Company shall have delivered to the Investor a certificate, executed by an officer of the Company in a form satisfactory to the Investor and dated as of the Closing Date, as to (i) the Company's Article of Incorporation, (ii) the Bylaws of the Company, (iii) the resolutions as adopted by the Company's Board of Directors in a form reasonably acceptable to the Investor, (iv) the Company's Certificate of Good, each as in effect at the Closing. 22 (l) The Company shall have created the Share Reserve.
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Conditions to the Company’s Obligation to Sell.
(a) Initial Closing. The obligation of the Company hereunder to issue and sell the
Note Initial Notes to
the each Buyer at the
Initial Closing is subject to the satisfaction, at or before the
Initial Closing
Date Date, of each of the following
conditions thereto, conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole
discretion: a. The discretion by providing each Buyer with prior written notice thereof: (i) Such Buy
...er shall have executed this Agreement each of the Transaction Documents to which it is a party and delivered the same to the Company. b. The (ii) Such Buyer shall have delivered (A) the Initial Cash Purchase Price contemplated by Section 1(c) hereof (less, in accordance with the case of Starboard Value and Opportunity Master Fund Ltd., any amounts withheld pursuant to Section 1(b) above. c. 4(g)) for the Initial Notes being purchased by such Buyer at the Initial Closing pursuant to Section 1(d) hereof by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company; and (B) the number of whole shares of Common Stock representing the Initial Share Purchase Price as contemplated by Section 1(c) and Section 1(d) hereof. (iii) The representations and warranties of the such Buyer shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality, which shall be true and correct in all respects subject to such qualification) as of the date when made and as of the Initial 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 specified date), and the such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the such Buyer at or prior to the Initial Closing Date. d. (b) Additional Closings. The obligation of the Company hereunder to issue and sell the Additional Notes to any Buyer at any Additional Closing is subject to the satisfaction, at or before such Additional Closing Date, of each of the following conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion by providing each such Buyer with prior written notice thereof: (i) Such Buyer shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company. (ii) Such Buyer shall have delivered: (A) the Additional Cash Purchase Price contemplated by Section 1(c) hereof (less, in the case of Starboard Value and Opportunity Master Fund Ltd., any amounts withheld pursuant to Section 4(g)) for the Additional Notes being purchased by such Buyer at the Additional Closing pursuant to Section 1(d) hereof by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company; and (B) the number of shares of Common Stock representing the Additional Share Purchase Price as contemplated by Section 1(c) and Section 1(d) hereof. (iii) The representations and warranties of such Buyer shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality, which shall be true and correct in all respects subject to such qualification) as of the date when made and as of the Additional 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 specified date), and such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such Buyer at or prior to the Additional Closing Date. (iv) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits would prohibit the consummation of any of the transactions contemplated by this Agreement.
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Conditions to the Company’s Obligation to Sell.
(a) The obligation of the Company hereunder to issue and sell the
Note First Convertible Debenture to the
Buyer Investor at the
First Closing is subject to the satisfaction, at or before the
First Closing
Date Date, of each of the following
conditions thereto, conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion:
a. (i) The
Buyer Investor shall have executed
this Agreement the Transaction Documents and d
...elivered the same them to the Company. b. (ii) The Buyer Investor shall have delivered to the Company the First Convertible Debenture Purchase Price in accordance with Section 1(b) above. c. by wire transfer of immediately available U.S. funds pursuant to the wire instructions provided by the Company. (iii) The representations and warranties of the Buyer Investor shall be true and correct in all material respects as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and the Buyer Investor shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Buyer Investor at or prior to the First Closing Date. d. No litigation, statute, rule, regulation, executive order, decree, ruling (b) The obligation of the Company hereunder to issue and sell the Second Convertible Debenture to the Investor at the Second Closing is subject to the satisfaction, at or injunction before the Second Closing Date, of each of the following conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion: (i) The Investor shall have been enacted, entered, promulgated or endorsed by or in executed the Transaction Documents and delivered them to the Company. (ii) The Investor shall have delivered to the Company the Second Convertible Debenture Purchase Price, minus any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over fees to be paid directly from the matters contemplated hereby which prohibits the consummation of any proceeds of the transactions contemplated Second Closing as set forth herein, by wire transfer of immediately available U.S. funds pursuant to the wire instructions provided by the Company. (iii) The representations and warranties of the Investor shall be true and correct in all material respects as of the date when made and as of the Second Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and the Investor shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement. Agreement to be performed, satisfied or complied with by the Investor at or prior to the Second Closing Date. 24 (c) The obligation of the Company hereunder to issue and sell the Third Convertible Debenture to the Investor at the Third Closing is subject to the satisfaction, at or before the Third Closing Date, of each of the following conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion: (i) The Investor shall have executed the Transaction Documents and delivered them to the Company. (ii) The Investor shall have delivered to the Company the Third Convertible Debenture Purchase Price, minus any fees to be paid directly from the proceeds of the Third Closing as set forth herein, by wire transfer of immediately available U.S. funds pursuant to the wire instructions provided by the Company. (iii) The representations and warranties of the Investor shall be true and correct in all material respects as of the date when made and as of the Third Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and the Investor shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Investor at or prior to the Third Closing Date.
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Conditions to the Company’s Obligation to Sell. The obligation of the Company hereunder to issue and sell the
Note Common Shares and the Warrants to
the each Buyer at the Closing is subject to the satisfaction, at or before the Closing
Date -19- Date, of each of the following
conditions thereto, conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole
discretion: a. discretion by providing each Buyer with prior written notice thereof: (a) The
Merger shall have been ...consummated in accordance with the terms of the Merger Agreement. (b) All outstanding Convertible Notes shall have converted into shares of Common Stock in accordance with the terms of such Convertible Notes. (c) Each Buyer shall have executed this Agreement each of the Transaction Documents to which it is a party and delivered the same to the Company. b. The (d) Each Buyer shall have executed and delivered to the Company an Investor Questionnaire, in the form attached hereto as Exhibit E, pursuant to which each such Buyer shall provide information necessary to confirm each such Buyer's status as an "accredited investor" (as such term is defined in Rule 501 promulgated under the 1933 Act) and to enable the Company to comply with the Registration Rights Agreement. (e) Each Buyer shall have delivered to the Company the Purchase Price in accordance with Section 1(b) above. c. for the Common Shares and the Warrants being purchased by such Buyer by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company. (f) The representations and warranties of the each Buyer shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date), and the each Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the such Buyer at or prior to the Closing Date. d. No litigation, statute, rule, regulation, executive order, decree, ruling or injunction By delivering the Purchase Price for the Common Shares and the Warrants being purchased by such Buyer at the Closing, each Buyer shall be deemed to have confirmed the foregoing as of the Closing Date. (g) Each of the Buyers affiliated with EW, HealthQuest and SEDCO shall have been enacted, entered, promulgated or endorsed by or concurrently funded at the Closing its respective Purchase Price as set forth in any court or governmental authority the Schedule of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. Buyers.
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Conditions to the Company’s Obligation to Sell.
(a) The obligation of the Company hereunder to issue and sell the
Note First Convertible Debenture to the
Buyer Investor at the
First Closing is subject to the satisfaction, at or before the
First Closing
Date Date, of each of the following
conditions thereto, conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion:
a. (i) The
Buyer Investor shall have executed
this Agreement the Transaction Documents and d
...elivered the same them to the Company. b. 23 (ii) The Buyer Investor shall have delivered to the Company the First Convertible Debenture Purchase Price in accordance with Section 1(b) above. c. by wire transfer of immediately available U.S. funds pursuant to the wire instructions provided by the Company. (iii) The representations and warranties of the Buyer Investor shall be true and correct in all material respects as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and the Buyer Investor shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Buyer Investor at or prior to the First Closing Date. d. No litigation, statute, rule, regulation, executive order, decree, ruling (b) The obligation of the Company hereunder to issue and sell the Second Convertible Debenture to the Investor at the Second Closing is subject to the satisfaction, at or injunction before the Second Closing Date, of each of the following conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion: (i) The Investor shall have been enacted, entered, promulgated or endorsed by or in executed the Transaction Documents and delivered them to the Company. (ii) The Investor shall have delivered to the Company the Second Convertible Debenture Purchase Price, minus any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over fees to be paid directly from the matters contemplated hereby which prohibits the consummation of any proceeds of the transactions contemplated Second Closing as set forth herein, by wire transfer of immediately available U.S. funds pursuant to the wire instructions provided by the Company. (iii) The representations and warranties of the Investor shall be true and correct in all material respects as of the date when made and as of the Second Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and the Investor shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement. Agreement to be performed, satisfied or complied with by the Investor at or prior to the Second Closing Date.
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Conditions to the Company’s Obligation to Sell. The obligation of the Company hereunder to issue and sell the
Note Preferred Shares and the related Warrants to
the each Buyer at the Closing is subject to the satisfaction, at or before the Closing
Date Date, of each of the following
conditions thereto, conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole
discretion: a. The discretion by providing each Buyer with prior written notice thereof: (i) Such Buyer shall
...have executed this Agreement each of the Transaction Documents to which it is a party and delivered the same to the Company. b. The (ii) Such Buyer shall have delivered to the Escrow Agent the Purchase Price (less, in accordance with the case of any Buyer, the amount withheld by such Buyer pursuant to Section 1(b) above. c. 4(f)) for the Preferred Shares being purchased by such Buyer at the Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the Escrow Agent. (iii) The representations and warranties of the such Buyer shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date), and the such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the such Buyer at or prior to the Closing Date. d. No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement.
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Conditions to the Company’s Obligation to Sell. The obligation of the Company hereunder to issue and sell the
Note Convertible Debentures and shares of Common Stock to
the each Buyer at
the each Closing is subject to the satisfaction, at or before
the each Closing
Date Date, of each of the following
conditions thereto, conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole
discretion: a. The discretion by providing each Buyer with prior written notice thereof: (a)... Such Buyer shall have executed this Agreement each of the Transaction Documents to which it is a party and delivered the same to the Company. b. The (b) Such Buyer and each other Buyer shall have delivered to the Company the Purchase Price (less, in the case of any Buyer, the amounts withheld pursuant to Section 1(c)) for the Convertible Debentures and shares of Common Stock being purchased by such Buyer and each other Buyer at the Closing, by wire transfer of immediately available funds in accordance with Section 1(b) above. c. the Closing Statement. 18 (c) In the case of the Second Closing and Third Closing, the Buyers shall have purchased all the Convertible Debentures and shares of Common Stock offered for sale at the Closings prior thereto. (d) The representations and warranties of the such Buyer shall be true and correct in all material respects as of the date when made and as of the each Closing Date as though originally 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 the such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the such Buyer at or prior to the such Closing Date. d. No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement.
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Conditions to the Company’s Obligation to Sell.
(a) The obligation of the Company hereunder to issue and sell the Note
and the Series E Warrant to the
Buyer Investor at the
Closing Closing, and the obligation of the Company to issue the Series F Warrant, the Series G Warrant and the Series H Warrant to the Investor at the applicable times set forth in this Agreement (if the Company is required to do so under this Agreement), is subject to the satisfaction, at or before the Closing
Date Date, of each of the following
conditions thereto, condit...ions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion: a. discretion by providing the Investor with prior written notice thereof: 32 (i) The Buyer Investor shall have executed this Agreement and each of the other Transaction Documents to which it is a party and delivered the same to the Company. b. (ii) The Buyer Investor shall have delivered to the Company the Purchase Price in accordance with (less the amounts withheld pursuant to Section 1(b) above. c. 4(g)) for the Note and the Series E Warrant being purchased by the Investor at the Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company. (iii) The representations and warranties of the Buyer Investor shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally 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 date), and the Buyer Investor shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Buyer Investor at or prior to the Closing Date. d. No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement.
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