Additional Conditions to Obligations of Purchaser. The obligation of Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment or waiver by Purchaser, on or prior to the Closing Date, of each of the following conditions: (a) (i) The representations and warranties set forth in Section 3.2 (Ownership of Acquired Shares), Section 4.3 (Capitalization), Section 4.13 (Real Property) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier), Section 4.16 (Material Contracts), Section 4.20 (Absence of Certain Changes) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) and Section 4.21 (Circular 75 Registration) shall be true and correct on and as of the Closing Date, (ii) the representations and warranties set forth in Section 3.3 (Authorization) and Section 4.2 (Authorization) shall be true and correct on and as of the Closing Date in all material respects, (iii) the other representations and warranties of the Company set forth in this Agreement (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) shall be true and correct on and as of the Closing Date (except to the extent such representations and warranties shall have been expressly made as of an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date), and (iv) the other representations and warranties of Sellers set forth in this Agreement shall be true and correct on and as of the Closing Date in all material respects; provided, however, that in the event of a breach of a representation and warranty of the type described in this Section 7.2(a)(iii) by the Company, the condition set forth in this Section 7.2(a)(iii) shall be deemed satisfied unless the failures of such representations and warranties to be so true and correct, individually or in the aggregate, has had, would have, or would reasonably be expected to have, a Material Adverse Effect; (b) The Company and Sellers shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them respectively on or prior to the Closing Date; (c) Purchaser shall have received a certificate of an executive officer of each of the Company and Sellers that the conditions set forth in subsections (a) and (b) of this Section 7.2 have been satisfied; (d) From and after the date hereof, there shall have been no change, event, effect or circumstances that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; (e) Purchaser shall have received the closing deliverables set forth in Section 2.4(b); (f) Purchaser shall have received satisfactory evidence that each Complying Circular 75 Security Holder has complied with the reporting and/or registration requirements under the SAFE Rules and Regulations; and (g) Purchaser shall have received satisfactory evidence that the Company Transaction Expenses due and payable on or prior to the Closing Date have been paid.
Appears in 2 contracts
Sources: Share Purchase Agreement (Jinglong Group Co., Ltd.), Share Purchase Agreement (JA Solar Holdings Co., Ltd.)
Additional Conditions to Obligations of Purchaser. The obligation obligations of Purchaser to consummate the transactions contemplated by this Agreement is are subject to the fulfillment or waiver by Purchaserfulfillment, on at or prior to the Closing DateClosing, of each of the following conditions:conditions (any or all of which may be waived in writing, to the extent permitted by Law, by Purchaser in whole or in part in its sole discretion):
(a) (i) The the representations and warranties of Seller set forth in Section 3.2 4.1 (Ownership of Acquired Title to Shares), Section 4.2 (Organization and Good Standing), Section 4.3 (CapitalizationAuthority; Execution and Delivery; Enforceability), and Section 4.13 4.7 (Real Property) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier), Section 4.16 (Material Contracts), Section 4.20 (Absence Activities of Certain Changes) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) and Section 4.21 (Circular 75 RegistrationEntities) shall be true and correct on in all respects, in each case, as of the date hereof and as of the Closing Dateas though made as of the Closing Date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), (ii) the representations and warranties set forth in Section 3.3 (Authorization) and Section 4.2 (Authorization) shall be true and correct on and as of the Closing Date in all material respects, (iii) the other representations and warranties of the Company set forth in this Agreement the first sentence of Section 5.1 (without regard Organization and Good Standing), Section 5.2(a), (Capitalization and Title to any “material,” “Material Adverse Effect” Shares) Section 5.2(b) (Capitalization and Title to Shares), Section 5.2(e) (Capitalization and Title to Shares), Section 5.3 (Authority; Execution and Delivery; Enforceability), and Section 5.7(ii) (Absence of Certain Changes or other materiality qualifierEvents) shall be true and correct on in all respects, in each case, as of the date hereof and as of the Closing Date as though made as of the Closing (except to or, in the extent such case of representations and warranties that address matters only as of a particular date, as of such date), (iii) the representations and warranties of Seller forth in Section 4.4(a)(i) (No Conflicts; Consents), Section 4.4(a)(iv) (No Conflicts; Consents), Section 4.4(b) (No Conflicts; Consents) and Section 4.5 (Brokers and Finders) shall have been expressly be true and correct in all material respects, in each case, as of the date hereof and as of the Closing as though made as of an earlier datethe Closing (or, in which the case such of representations and warranties shall have been true and correct that address matters only as of a particular date, as of such earlier date), and (iv) the representations and warranties of the Company set forth in Section 5.1 (Organization and Good Standing) (other than the first sentence thereof), Section 5.2(d) (Capitalization and Title to Shares), Section 5.4(a)(i) (No Conflicts; Consents), Section 5.4(a)(iv) (No Conflicts; Consents), Section 5.4(b) (No Conflicts; Consents) and Section 5.17 (Brokers and Finders) shall be true and correct in all material respects, in each case, as of the date hereof and as of the Closing as though made as of the Closing (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), (v) the representations and warranties of the Company set forth in Section 5.22 (Related Party Transactions) shall be true and correct in all material respects, in each case, as of the date hereof and as of the Closing as though made as of the Closing (or, in the case of representations and warranties that address matters only as of a particular date, as of such date) and (vi) all other representations and warranties of Sellers set forth the Company contained in this Agreement Article V and Seller in Article IV shall be true and correct on (without giving effect to any materiality or “Company Material Adverse Effect” qualifications set forth therein), in each case, as of the date hereof and as of the Closing Date in all material respects; providedas though made as of the Closing (or, however, that in the event case of representations and warranties that address matters only as of a breach particular date, as of a representation and warranty such date), except, in the case of this clause (vi), where the type described in this Section 7.2(a)(iii) by the Company, the condition set forth in this Section 7.2(a)(iii) shall be deemed satisfied unless the failures failure of such representations and or warranties to be so true and correctcorrect has not had, or would not be reasonably expected to have, individually or in the aggregate, has had, would have, or would reasonably be expected to have, a Company Material Adverse Effect;
(b) The each of the Company and Sellers Seller shall have performed or complied in all material respects performed or complied with all agreements agreements, covenants and covenants obligations required by this Agreement to be performed or complied with by them respectively on the Company or Seller, as the case may be, at or prior to the Closing DateClosing;
(c) since the date hereof, there shall not have occurred and be continuing any Company Material Adverse Effect;
(d) Purchaser shall have received a certificate of signed by an executive officer of each of the Company Seller and Sellers the Company, dated as of the Closing Date, certifying that the conditions set forth in subsections (a), (b) and (bc) of this Section 7.2 8.2 have been satisfied;
(d) From and after the date hereof, there shall have been no change, event, effect or circumstances that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect;; and
(e) Purchaser Seller and the Company shall have received delivered, or caused to be delivered, to Purchaser the closing Closing deliverables set forth in Section 2.4(b2.3(b);
(f) Purchaser shall have received satisfactory evidence that each Complying Circular 75 Security Holder has complied with the reporting and/or registration requirements under the SAFE Rules and Regulations; and
(g) Purchaser shall have received satisfactory evidence that the Company Transaction Expenses due and payable on or prior to the Closing Date have been paid.
Appears in 1 contract
Additional Conditions to Obligations of Purchaser. The obligation of Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment or waiver by Purchaser, on or prior to the Closing Date, Date of each of the following conditions:additional conditions (any or all of which may be waived by Purchaser in writing in whole or in part in its sole discretion):
(a) (i) The representations and warranties set forth in Section 3.2 (Ownership of Acquired Shares), Section 4.3 (Capitalization), Section 4.13 (Real Property) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier), Section 4.16 (Material Contracts), Section 4.20 (Absence of Certain Changes) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) and Section 4.21 (Circular 75 Registration) shall be true and correct on and as of the Closing Date, (ii) Other than the representations and warranties set forth of Seller contained in Section 3.3 (Authorization) 3.1, Section 3.2, Section 3.3, Section 3.6 and Section 4.2 (Authorization) shall be true and correct on and as of 3.25, the Closing Date in all material respects, (iii) the other representations and warranties of the Company set forth in this Agreement (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) shall be true and correct on and as of the Closing Date (except to the extent such representations and warranties shall have been expressly made as of an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date), and (iv) the other representations and warranties of Sellers set forth Seller contained in this Agreement shall be true and correct (i) in all respects in the case of any representation or warranty qualified by materiality or Material Adverse Effect or (ii) in all material respects in the case of any representation or warranty not qualified by materiality or Material Adverse Effect, in each case, on and as of the date hereof and on and as of the Closing Date in all material respects; provided, however, that in with the event of a breach of a representation same effect as though made at and warranty of the type described in this Section 7.2(a)(iii) by the Company, the condition set forth in this Section 7.2(a)(iii) shall be deemed satisfied unless the failures as of such date (except those representations and warranties to that address matters only as of a specified date, the accuracy of which shall be so determined as of that specified date in all respects). The representations and warranties of Seller contained in Section 3.1, Section 3.2, Section 3.3, Section 3.6 and Section 3.25 shall be true and correctcorrect in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, individually or the accuracy of which shall be determined as of that specified date in the aggregate, has had, would have, or would reasonably be expected to have, a Material Adverse Effectall respects);
(b) The Company and Sellers Seller shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them respectively Seller on or prior to the Closing Date;
(c) From the date of this Agreement, there shall not have occurred any Material Adverse Effect;
(d) Purchaser shall have received a certificate of an executive officer of each of the Company and Sellers Seller that the conditions set forth in subsections (a), (b) and (bc) of this Section 7.2 6.2 have been satisfied;
(d) From and after the date hereof, there shall have been no change, event, effect or circumstances that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect;
(e) Purchaser shall have received the closing deliverables set forth in Section 2.4(b)Financing on terms that are customary and market;
(f) Purchaser The coal supply agreement described in Exhibit 6.2(f) shall have received satisfactory evidence that each Complying Circular 75 Security Holder has complied with the reporting and/or registration requirements under the SAFE Rules been entered into and Regulationsbe in full force and effect; and
(g) Purchaser shall have received satisfactory evidence that all of the Company Transaction Expenses due and payable on or prior to the Closing Date have been paiddeliveries contemplated in Section 2.2(b).
Appears in 1 contract
Additional Conditions to Obligations of Purchaser. The obligation obligations of Purchaser to consummate the transactions contemplated by this Agreement is are subject to the fulfillment or waiver by Purchaserfulfillment, on or prior to the Closing Date, of each of the following conditions:conditions (any or all of which may be waived by Purchaser in whole or in part in its sole discretion):
(a) (i) The representations and warranties of the Company and Seller set forth in Section 3.2 (Ownership of Acquired Shares4.1, Section 4.2(a), Section 4.2(b), Section 4.2(c), Section 4.3 (Capitalization), Section 4.13 (Real Property) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier), and Section 4.16 (Material Contracts), Section 4.20 (Absence of Certain Changes) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) and Section 4.21 (Circular 75 Registration) shall be true and correct on and as of the Closing Date, (ii) the representations and warranties set forth in Section 3.3 (Authorization) and Section 4.2 (Authorization) shall be true and correct on and all material respects as of the Closing Date as though made as of the Closing Date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date) and (ii) all material respects, (iii) the other representations and warranties of the Company set forth and Seller contained in this Agreement (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) Article IV shall be true and correct on and (without (other than in the case of the representation contained in Section 4.7(ii)) giving effect to any materiality or “Business Material Adverse Effect” qualifications set forth therein) as of the Closing Date as though made as of the Closing Date (except to or, in the extent such case of representations and warranties shall have been expressly made that address matters only as of an earlier a particular date, in which case such representations and warranties shall have been true and correct as of such earlier date), and except, in the case of this clause (iv) ii), where the other failure of such representations and or warranties of Sellers set forth in this Agreement shall to be true and correct on and as of the Closing Date in all material respects; provided, however, that in the event of a breach of a representation and warranty of the type described in this Section 7.2(a)(iii) by the Company, the condition set forth in this Section 7.2(a)(iii) shall be deemed satisfied unless the failures of such representations and warranties to be so true and correct, individually or in the aggregate, has not had, and would have, or would not be reasonably be expected to have, a Business Material Adverse Effect;
(b) The Company and Sellers Seller shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them respectively the Company or Seller, as the case may be, on or prior to the Closing Date;
(c) Purchaser shall have received a certificate of an executive officer of each of the Company and Sellers that Seller to the effect that, to the best of his or her knowledge, the conditions set forth in subsections (a) and (b) of this Section 7.2 have been satisfied;satisfied with respect to the matters pertaining to the Company and Seller, respectively; and
(d) From and after the date hereofNo change or event has occurred that has had, there shall have been no change, event, effect or circumstances thatthat would reasonably be expected to have, individually or in the aggregateaggregate with other such changes or events, has had or would reasonably be expected to have a Business Material Adverse Effect;.
(e) Purchaser The Reorganization shall have received the closing deliverables set forth been completed in all material respects in accordance with Section 2.4(b);
(f) Purchaser shall have received satisfactory evidence that each Complying Circular 75 Security Holder has complied 6.14 with the reporting and/or registration requirements under the SAFE Rules and Regulations; and
(g) Purchaser shall have received satisfactory evidence that the Company Transaction Expenses due and payable on or prior respect to the Closing Date have been paid.step 1 of Exhibit D.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ingersoll Rand Inc.)
Additional Conditions to Obligations of Purchaser. The obligation of Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment or waiver by Purchaserfulfillment, on or prior to the Closing Date, of each of the following conditions:conditions (any or all of which may be waived by Purchaser in whole or in part in its sole discretion):
(a) (i) The the representations and warranties set forth of Seller contained in Section 3.2 Article III of this Agreement (Ownership of Acquired Shares), Section 4.3 (Capitalization), Section 4.13 (Real Property) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier), Section 4.16 (Material Contracts), Section 4.20 (Absence of Certain Changes) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) and Section 4.21 (Circular 75 Registration) shall be true and correct on and as of the Closing Date, (ii) than the representations and warranties set forth in Section 3.3 (Authorization3.2, Section 3.5(a) and the first sentence of Section 4.2 (Authorization3.8) shall be true and correct on and as of the Closing Date in all material respects, (iii) the other representations and warranties of the Company set forth in this Agreement (without regard giving effect to any “material,” “materiality or Material Adverse Effect” or other materiality qualifier) shall be true and correct Effect qualifications therein, on and as of the Closing Date (except to the extent such representations and warranties shall have been expressly made as of an earlier date, in which case such representations and warranties shall have been true and correct in all respects as of such earlier date), without giving effect to any materiality or Material Adverse Effect qualifications therein) with the same force and (iv) the other representations and warranties of Sellers set forth in this Agreement shall be true and correct effect as if made on and as of the Closing Date in all material respects; provided(or such earlier date), however, that in the event of a breach of a representation and warranty of the type described in this Section 7.2(a)(iii) by the Company, the condition set forth in this Section 7.2(a)(iii) shall be deemed satisfied unless the except where any failures of such representations and warranties to be so true and correct, individually or in the aggregate, has had, would have, or would not reasonably be expected to have, have a Material Adverse Effect, (ii) the representations and warranties of Seller contained in Section 3.2 and Section 3.5(a) shall be true and correct in all material respects, on and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date, and (iii) the representations and warranties of Seller contained in the first sentence of Section 3.8 shall be true and correct in all respects, on and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date;
(b) The Company and Sellers Seller shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them respectively Seller on or prior to the Closing Date;
(c) Since the date of this Agreement, there shall not have occurred any Material Adverse Effect;
(d) Seller shall have (i) caused U.S. United Barge Line, LLC to transfer all of the outstanding membership interests in UIS to the Company, and (ii) subject to Section 5.16, caused the Subject Vessels to be transferred to the Company or UIS and caused the Certificates of Documentation for such Subject Vessels to properly reflect ownership by the Company or UIS, as the case may be, in each case to be effective no later than the Closing;
(e) Purchaser shall have received a certificate signed by a duly authorized signatory of an executive officer Seller certifying on behalf of each of the Company and Sellers Seller that the conditions set forth in subsections (a), (b) and (bc) of this Section 7.2 6.2 have been satisfied;
(d) From and after the date hereof, there shall have been no change, event, effect or circumstances that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect;
(e) Purchaser shall have received the closing deliverables set forth in Section 2.4(b);; and
(f) Purchaser Seller shall have received satisfactory evidence that each Complying Circular 75 Security Holder has complied with delivered, or cause to be delivered, to Purchaser or other applicable Person the reporting and/or registration requirements under the SAFE Rules and Regulations; and
(g) Purchaser shall have received satisfactory evidence that the Company Transaction Expenses due and payable on or prior documents required to the Closing Date have been paidbe delivered by Seller pursuant to Section 2.2(b).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (United Maritime Group, LLC)
Additional Conditions to Obligations of Purchaser. The obligation obligations of Purchaser to consummate the transactions contemplated by this Agreement is shall be subject to the fulfillment or waiver by Purchaserfulfillment, on at or prior to the Closing DateClosing, of each of the following conditions:
(a) additional condition that (i) The the representations and warranties set forth of Sellers contained in Section 3.2 (Ownership of Acquired Shares), Section 4.3 (Capitalization), Section 4.13 (Real Property) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier), Section 4.16 (Material Contracts), Section 4.20 (Absence of Certain Changes) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) and Section 4.21 (Circular 75 Registration) this Agreement shall be true and correct on and as of the Closing Date, (ii) the representations and warranties set forth in Section 3.3 (Authorization) and Section 4.2 (Authorization) shall be true and correct on and as of the Closing Date in all material respects, (iii) with the other representations same force and warranties of the Company set forth in this Agreement (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) shall be true and correct on and effect as if made as of the Closing Date (except to the extent other than such representations and warranties shall have been expressly as are made as of an earlier another date, in which case such representations and warranties shall have been true and correct as of such earlier other date), and (iv) the other representations and warranties of Sellers set forth in this Agreement shall be true and correct on and as of the Closing Date in all material respects; provided, however, that in the event of a breach of a representation and warranty of the type described in this Section 7.2(a)(iii) by the Company, the condition set forth in this Section 7.2(a)(iii) shall be deemed satisfied unless the failures of with only such representations and warranties to be so true and correctexceptions as, individually or in the aggregate, has had, would have, have not had Material Adverse Effect (disregarding each exception or would reasonably be expected qualification therein relating to have, a materiality and Material Adverse Effect;
), (bii) The Company the covenants and Sellers shall have performed or complied agreements contained in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them respectively Sellers on or prior to before the Closing Date;
shall have been complied with in all material respects, and (ciii) Purchaser shall have received a certificate from Sellers' Representative, on behalf of an executive officer Sellers, to such effect (relating to Sellers). Further, the obligations of each of Purchaser to consummate the Company and Sellers transactions contemplated by this Agreement shall be subject to the additional conditions that (x) there shall not have occurred any material adverse change (taken together with all other developments) since the conditions set forth in subsections (a) and (b) date of this Section 7.2 have been satisfied;
(d) From and after the date hereof, there shall have been no change, event, effect or circumstances that, individually or in the aggregate, has had or Agreement that would reasonably be expected to have a Material Adverse Effect;
, (ey) Purchaser the Securities specified on Schedule I hereto shall have received consist of at least 6,650,000 shares of Common Stock, and (z) the closing deliverables set forth in Section 2.4(b);
(f) Purchaser Securities specified on Schedule I hereto shall have received satisfactory evidence that each Complying Circular 75 Security Holder has complied with constitute at least a majority of the reporting and/or registration requirements under issued and outstanding Commonwealth Options, at least a majority of the SAFE Rules issued and Regulations; and
(g) Purchaser shall have received satisfactory evidence that outstanding ComVest Warrants, and at least a majority of the Company Transaction Expenses due issued and payable on or prior to the Closing Date have been paidoutstanding Unit Purchase Options.
Appears in 1 contract
Sources: Securities Purchase Agreement (Commonwealth Associates Lp)
Additional Conditions to Obligations of Purchaser. The obligation of Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment or waiver by Purchaserfulfillment, on or prior to the Closing Date, of each of the following conditions:conditions (any or all of which may be waived by Purchaser in whole or in part in its sole discretion):
(a) (i) The the representations and warranties set forth of Seller contained in Section 3.2 Article III of this Agreement (Ownership of Acquired Shares), Section 4.3 (Capitalization), Section 4.13 (Real Property) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier), Section 4.16 (Material Contracts), Section 4.20 (Absence of Certain Changes) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) and Section 4.21 (Circular 75 Registration) shall be true and correct on and as of the Closing Date, (ii) than the representations and warranties set forth in Section 3.3 (Authorization) 3.2, Section 3.5(a), the first sentence of Section 3.8 and Section 4.2 (Authorization3.22) shall be true and correct on and as of the Closing Date in all material respects, (iii) the other representations and warranties of the Company set forth in this Agreement (without regard giving effect to any “material,” “materiality or Material Adverse Effect” or other materiality qualifier) shall be true and correct Effect qualifications therein, on and as of the Closing Date (except to the extent such representations and warranties shall have been expressly made as of an earlier date, in which case such representations and warranties shall have been true and correct in all respects as of such earlier date), without giving effect to any materiality or Material Adverse Effect qualifications therein) with the same force and (iv) the other representations and warranties of Sellers set forth in this Agreement shall be true and correct effect as if made on and as of the Closing Date in all material respects; provided(or such earlier date), however, that in the event of a breach of a representation and warranty of the type described in this Section 7.2(a)(iii) by the Company, the condition set forth in this Section 7.2(a)(iii) shall be deemed satisfied unless the except where any failures of such representations and warranties to be so true and correct, individually or in the aggregate, has had, would have, or would not reasonably be expected to have, have a Material Adverse Effect, (ii) the representations and warranties of Seller contained in Section 3.2 and Section 3.5(a) shall be true and correct in all material respects, on and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date, and (iii) the representations and warranties of Seller contained in the first sentence of Section 3.8 and Section 3.22 shall be true and correct in all respects, on and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date;
(b) The Company and Sellers Seller shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them respectively Seller on or prior to the Closing Date;
(c) Since the date of this Agreement, there shall not have occurred any Material Adverse Effect;
(d) Purchaser shall have received a certificate signed by a duly authorized signatory of an executive officer Seller certifying on behalf of each of the Company and Sellers Seller that the conditions set forth in subsections (a), (b) and (bc) of this Section 7.2 6.2 have been satisfied;
(d) From and after the date hereof, there shall have been no change, event, effect or circumstances that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect;; and
(e) Purchaser Seller shall have received delivered, or cause to be delivered, to Purchaser or other applicable Person the closing deliverables set forth in documents required to be delivered by Seller pursuant to Section 2.4(b2.2(b);
(f) Purchaser shall have received satisfactory evidence that each Complying Circular 75 Security Holder has complied with the reporting and/or registration requirements under the SAFE Rules and Regulations; and
(g) Purchaser shall have received satisfactory evidence that the Company Transaction Expenses due and payable on or prior to the Closing Date have been paid.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (United Maritime Group, LLC)
Additional Conditions to Obligations of Purchaser. The obligation of Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment or waiver by Purchaserfulfillment, on or prior to the Closing Date, of each of the following conditions:conditions (any or all of which may be waived by Purchaser in whole or in part in its sole discretion):
(a) (i) The the representations and warranties set forth of Seller contained in Section 3.2 Article III of this Agreement (Ownership of Acquired Shares), Section 4.3 (Capitalization), Section 4.13 (Real Property) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier), Section 4.16 (Material Contracts), Section 4.20 (Absence of Certain Changes) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) and Section 4.21 (Circular 75 Registration) shall be true and correct on and as of the Closing Date, (ii) than the representations and warranties set forth in Section 3.3 (Authorization3.2, Section 3.5(a), the first three sentences of Section 3.5(b), Section 3.5(c) and the first sentence of Section 4.2 (Authorization3.8) shall be true and correct on and as of the Closing Date in all material respects, (iii) the other representations and warranties of the Company set forth in this Agreement (without regard giving effect to any “material,” “materiality or Material Adverse Effect” or other materiality qualifier) shall be true and correct Effect qualifications therein, on and as of the Closing Date (except to the extent such representations and warranties shall have been expressly made as of an earlier date, in which case such representations and warranties shall have been true and correct in all respects as of such earlier date), without giving effect to any materiality or Material Adverse Effect qualifications therein) with the same force and (iv) the other representations and warranties of Sellers set forth in this Agreement shall be true and correct effect as if made on and as of the Closing Date in all material respects; provided(or such earlier date), however, that in the event of a breach of a representation and warranty of the type described in this Section 7.2(a)(iii) by the Company, the condition set forth in this Section 7.2(a)(iii) shall be deemed satisfied unless the except where any failures of such representations and warranties to be so true and correct, individually or in the aggregate, has had, would have, or would not reasonably be expected to have, have a Material Adverse Effect, (ii) the representations and warranties of Seller contained in Section 3.5(b) (other than the first three sentences thereof) and Section 3.5(c) shall be true and correct in all material respects (without giving effect to any materiality or Material Adverse Effect qualifications therein), on and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date, and (iii) the representations and warranties of Seller contained in Section 3.2, Section 3.5(a), the first three sentences of Section 3.5(b) and the first sentence of Section 3.8 shall be true and correct in all respects, on and as of the Closing Date, with the same force and effect as if made on and as of the Closing Date;
(b) The Company and Sellers Seller shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them respectively Seller on or prior to the Closing Date;
(c) Since the date of this Agreement, there shall not have occurred any Material Adverse Effect;
(d) Purchaser shall have received a certificate signed by the President, Chief Executive Officer, or Managing Member (or Person holding similar position on behalf of an executive officer Seller) (the “Certifying Officer”) of each Seller certifying on behalf of the Company and Sellers Seller that the conditions set forth in subsections (a), (b) and (bc) of this Section 7.2 6.2 have been satisfied;
(d) From and after the date hereof, there shall have been no change, event, effect or circumstances that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect;; and
(e) Purchaser Seller shall have received delivered, or cause to be delivered, to Purchaser or other applicable Person the closing deliverables set forth in documents required to be delivered by Seller pursuant to Section 2.4(b2.2(b);
(f) Purchaser shall have received satisfactory evidence that each Complying Circular 75 Security Holder has complied with the reporting and/or registration requirements under the SAFE Rules and Regulations; and
(g) Purchaser shall have received satisfactory evidence that the Company Transaction Expenses due and payable on or prior to the Closing Date have been paid.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (International Shipholding Corp)
Additional Conditions to Obligations of Purchaser. The obligation of Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment or waiver by Purchaserfulfillment, on or prior to the Closing Date, of each of the following conditions:conditions (any or all of which may be waived by Purchaser in whole or in part in its sole discretion):
(a) (i) The the representations and warranties set forth of Seller contained in Section 3.2 Article III of this Agreement (Ownership of Acquired Shares), Section 4.3 (Capitalization), Section 4.13 (Real Property) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier), Section 4.16 (Material Contracts), Section 4.20 (Absence of Certain Changes) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) and Section 4.21 (Circular 75 Registration) shall be true and correct on and as of the Closing Date, (ii) than the representations and warranties set forth in Section 3.3 3.2, the third sentence of Section 3.5(a), clause (Authorizationi) of the fourth sentence of Section 3.5(a) and the first sentence of Section 4.2 (Authorization3.8) shall be true and correct on and as of the Closing Date in all material respects, (iii) the other representations and warranties of the Company set forth in this Agreement (without regard giving effect to any “material,” “materiality or Material Adverse Effect” or other materiality qualifier) shall be true and correct Effect qualifications contained therein, on and as of the Closing Date (except to the extent such representations and warranties shall have been expressly made as of an earlier date, in which case such representations and warranties shall have been true and correct in all respects as of such earlier date), without giving effect to any materiality or Material Adverse Effect qualifications contained therein) with the same force and (iv) the other representations and warranties of Sellers set forth in this Agreement shall be true and correct effect as if made on and as of the Closing Date in all material respects; providedDate, however, that in the event of a breach of a representation and warranty of the type described in this Section 7.2(a)(iii) by the Company, the condition set forth in this Section 7.2(a)(iii) shall be deemed satisfied unless the except where any failures of such representations and warranties to be so true and correct, individually or in the aggregate, has had, would have, or would reasonably be expected to have, not have a Material Adverse Effect, and (ii) the representations and warranties set forth in Section 3.2, the third sentence of Section 3.5(a), clause (i) of the fourth sentence of Section 3.5(a) and the first sentence of Section 3.8 shall be true and correct in all respects on and as of the Closing Date (except to the extent such representations and warranties shall have been expressly made as of an earlier date, in which case such representations and warranties shall have been true and correct in all respects as of such earlier date) with the same force and effect as if made on and as of the Closing Date;
(b) The Company and Sellers Seller shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them respectively Seller on or prior to the Closing Date;
(c) During the period from the date hereof to the Closing Date, there shall not have occurred any change, event or effect that, individually or in the aggregate, has had a Material Adverse Effect; and
(d) Purchaser shall have received a certificate of an executive officer of each of the Company and Sellers Seller that the conditions set forth in subsections (a), (b) and (bc) of this Section 7.2 6.2 have been satisfied;
(d) From and after the date hereof, there shall have been no change, event, effect or circumstances that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect;
(e) Purchaser shall have received the closing deliverables set forth in Section 2.4(b);
(f) Purchaser shall have received satisfactory evidence that each Complying Circular 75 Security Holder has complied with the reporting and/or registration requirements under the SAFE Rules and Regulations; and
(g) Purchaser shall have received satisfactory evidence that the Company Transaction Expenses due and payable on or prior to the Closing Date have been paid.
Appears in 1 contract
Additional Conditions to Obligations of Purchaser. The obligation obligations of Purchaser to consummate the transactions contemplated by this Agreement is are subject to the fulfillment satisfaction (or waiver by Purchaser, on or prior to ) of the following additional conditions as of the Closing Date, of each of the following conditions:
(a) (i) The representations Each of the Fundamental Representations of Seller and warranties the Companies and the representation and warranty of the Companies set forth in Section 3.2 (Ownership of Acquired Shares), Section 4.3 (Capitalization), Section 4.13 (Real Property5.7(a)(ii) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier), Section 4.16 (Material Contracts), Section 4.20 (Absence of Certain Changes) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) and Section 4.21 (Circular 75 Registration) shall be true and correct on and as of the Closing Date, (ii) the representations and warranties set forth in Section 3.3 (Authorization) and Section 4.2 (Authorization) shall be true and correct on and as date of the Closing Date in all material respects, (iii) the other representations and warranties of the Company set forth in this Agreement (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) shall be true and correct as though made on and as of the Closing Date (except to the extent any such representations and warranties shall have been expressly made representation speaks as of an earlier any other specific date, in which case such representations and warranties representation shall have been be true and correct as of such earlier date), and (iv) except for any de minimis inaccuracies. Each of the other representations and warranties of Sellers Seller and the Companies set forth in this Agreement Article IV and Article V (disregarding all qualifications as to materiality or Material Adverse Effect set forth therein) shall be true and correct on as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent any such representation or warranty speaks as of any other specific date, in all material respects; provided, however, that in the event of a breach of a which case such representation and or warranty of the type described in this Section 7.2(a)(iii) by the Company, the condition set forth in this Section 7.2(a)(iii) shall be deemed satisfied unless true and correct as of such date), except where the failures failure of such representations and warranties to be so true and correctcorrect has not had, and would not, individually or in the aggregate, has had, would have, or would reasonably be expected to have, have a Material Adverse Effect;.
(b) The Company Seller and Sellers the Companies shall have performed or complied in all material respects with all covenants and agreements and covenants required by this Agreement to be performed or complied with by them respectively Seller or the Companies under this Agreement on or prior to the Closing Date;.
(c) Purchaser shall have received a certificate of an executive officer of each of Since the Company and Sellers that the conditions set forth in subsections (a) and (b) date of this Section 7.2 have been satisfied;
(d) From and after the date hereofAgreement, there shall have been no changeMaterial Adverse Effect, eventnor shall any event(s), effect occurrence(s), fact(s), condition(s), change(s) or circumstances effect(s) have occurred that, individually or in the aggregate, has had with or would without the lapse of time, could reasonably be expected to have result in a Material Adverse Effect;.
(d) No Consent required pursuant to Section 10.1(b) or Section 10.1(c) shall impose a Purchaser Burdensome Condition on Purchaser or any of its Affiliates.
(e) Purchaser The Company and its Affiliates shall have received Provider Contracts in a sufficient number, Provider type and geographic location to satisfy the closing deliverables set forth in Section 2.4(bminimum provider network requirements established by CMS for the Business (the “Minimum Network Requirements”);.
(f) Purchaser H0838 shall have received satisfactory evidence that each Complying Circular 75 Security Holder has complied with the reporting and/or registration requirements under the SAFE Rules and Regulations; anda Part D Summary Rating for its Part D operations for contract year 2024 of not less than 3 Stars as reported by CMS, which is expected in October 2023.
(g) Purchaser All of the Required Shared Assets shall have received satisfactory evidence been duly and validly assigned, transferred, conveyed and delivered to, and shall be owned and held by, a Company that the Company Transaction Expenses due and payable on or Purchaser will reasonably determine prior to the Closing Date have been paidClosing, free and clear of any Liens other than Permitted Liens.
Appears in 1 contract
Sources: Stock Purchase Agreement (Bright Health Group Inc.)
Additional Conditions to Obligations of Purchaser. The obligation of Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment or waiver by Purchaserfulfillment, on or prior to the Closing Date, of each of the following conditions:conditions (any or all of which may be waived by Purchaser in whole or in part in its sole discretion):
(a) (i) The the representations and warranties set forth of Honeywell contained in Section 3.2 this Agreement (Ownership of Acquired Shares), Section 4.3 (Capitalization), Section 4.13 (Real Property) (without regard to disregarding any “material,” “SPS Material Adverse Effect” , materiality or other materiality qualifier), Section 4.16 (Material Contracts), Section 4.20 (Absence of Certain Changes) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) and Section 4.21 (Circular 75 Registrationsimilar qualifiers therein) shall be true and correct on and as of the Closing Date, (ii) the representations and warranties set forth in Section 3.3 (Authorization) and Section 4.2 (Authorization) shall be true and correct on and as of the Closing Date in all material respects, (iii) the other representations and warranties of the Company set forth in this Agreement (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) shall be true and correct respects on and as of the Closing Date (except to the extent such representations and warranties shall have been expressly made as of an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date), ) with the same force and (iv) the other representations and warranties of Sellers set forth in this Agreement shall be true and correct effect as if made on and as of the Closing Date in all material respects; providedDate, however, except to the extent that in the event of a breach of a representation and warranty of the type described in this Section 7.2(a)(iii) by the Company, the condition set forth in this Section 7.2(a)(iii) shall be deemed satisfied unless the any failures of such representations and warranties to be so true and correctcorrect would not, individually or in the aggregate, has had, would have, or would reasonably be expected to have, a have resulted in an SPS Material Adverse Effect; in addition, the representations and warranties contained in Section 3.4 shall be true and correct in all material respects on and as of the Closing Date;
(b) The Company and Sellers Honeywell shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them respectively it on or prior to the Closing Date;
(c) Purchaser shall have received a certificate of an executive officer of each of the Company and Sellers Honeywell (which officer shall be reasonably satisfactory to Purchaser) that the conditions set forth in subsections paragraphs (a) and (b) of this Section 7.2 above have been satisfied;
(d) From Honeywell shall have furnished Purchaser with a certificate stating that Honeywell is not a “foreign” person within the meaning of Section 1445 of the Code, which certificate shall set forth all information required by, and after otherwise be executed in accordance with, Treas. Reg. § 1.1445-2(b)(2);
(e) since the date hereofof this Agreement, there shall have been no event, condition or change, or worsening of any existing event, effect condition or circumstances thatchange, that would, individually or in the aggregate, has had or would reasonably be expected to have a an SPS Material Adverse Effect;
(ef) Purchaser since the date of this Agreement, there not having occurred and be continuing a material disruption of or material adverse change in the markets for new issuances of leveraged loans or high yield securities that is caused by a (A) suspension or material limitation in trading of securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or establishment of minimum or maximum trading prices or maximum ranges for prices for securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market, or by such other exchange, regulatory body or governmental authority having jurisdiction over the trading of securities on U.S. public financial markets, (B) declaration of a banking moratorium by federal or state authorities or declaration of a moratorium in foreign exchange trading by major international banks or persons, (C) declaration by the United States of a national emergency or war or (D) material act of terrorism occurring in the United States, which material disruption or material adverse change shall have received resulted in the closing deliverables set forth failure of the "Market MAC" condition in Section 2.4(b)the Debt Commitment Letter to be satisfied or waived;
(f) Purchaser shall have received satisfactory evidence that each Complying Circular 75 Security Holder has complied with the reporting and/or registration requirements under the SAFE Rules and Regulations; and
(g) Purchaser shall have received satisfactory evidence that been provided with (i) the Company Transaction Expenses due Debt Financing Historical Financial Information and payable on or the Selected Financial Information and (ii) any auditors comfort letters and opinions described in Section 5.17(b)(ix) and Section 5.17(b)(x) as may be requested immediately prior to or simultaneously with the Closing Date have been paidexecution of an agreement with a placement agent or at a time immediately prior to and/or simultaneously with the closing of any portion of the Debt Financing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Honeywell International Inc)
Additional Conditions to Obligations of Purchaser. The obligation of Purchaser to consummate the transactions contemplated by this Agreement Sale, is subject to the fulfillment or waiver by Purchaserfulfillment, on or prior to as of the Closing DateClosing, of each of the following conditions:conditions (any or all of which may be waived in writing by Purchaser, to the extent permitted by Law, in whole or in part in its sole discretion):
(a) (i) The the representations and warranties of (A) Seller set forth in Section 3.2 (Ownership of Acquired Shares), Section 4.3 (Capitalization), Section 4.13 (Real Property) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier), Section 4.16 (Material Contracts), Section 4.20 (Absence of Certain Changes) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) 4.1 and Section 4.21 4.17 and (Circular 75 RegistrationB) the Company and the General Partner set forth in Section 4.1 and Section 4.17, shall be true and correct on in all material respects as of the date hereof and as of the Closing DateDate as though made as of the Closing Date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), (ii) the representations and warranties of (A) Seller set forth in Section 3.3 (Authorization4.2(d), Section 4.3 and Section 4.4(b)(iii) and (B) the Company and the General Partner set forth in Section 4.2 4.2, Section 4.3, Section 4.4(a)(iii) (Authorizationsolely as it relates to the Company or the General Partner), shall be true and correct in all respects (other than de minimis inaccuracies) as of the date hereof and as of the Closing Date as though made as of the Closing Date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), (iii) the representations and warranties of the Company contained in the second sentence of Section 4.7 (without giving effect to any matter contained in the Company Disclosure Schedules) shall be true and correct on in all respects as of the date hereof and as of the Closing Date in as though made as of the Closing Date and (iv) all material respects, (iii) the other representations and warranties of Seller, the General Partner and the Company set forth contained in this Agreement Article IV shall be true and correct in all respects (without regard giving effect to any “material,” materiality or “Material Adverse Effect” or other materiality qualifierqualifications set forth therein) shall be true and correct on as of the date hereof and as of the Closing Date as though made as of the Closing (except to or, in the extent such case of representations and warranties shall have been expressly made that address matters only as of an earlier a particular date, in which case such representations and warranties shall have been true and correct as of such earlier date), and except, in the case of this clause (iv) ), where the other failure of such representations and or warranties of Sellers set forth in this Agreement shall to be true and correct on and as of the Closing Date in all material respects; provided, however, that in the event of a breach of a representation and warranty of the type described in this Section 7.2(a)(iii) by the Company, the condition set forth in this Section 7.2(a)(iii) shall be deemed satisfied unless the failures of such representations and warranties to be so true and correct, individually or in the aggregate, has had, not had and would have, or would not reasonably be expected to have, have a Material Adverse Effect;
(b) The Each of Seller, the General Partner and the Company and Sellers shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them respectively on it at or prior to the Closing Date;Closing; and
(c) Purchaser shall have received a certificate of an executive officer authorized signatory of each of Seller, the General Partner and the Company and Sellers to the effect that the conditions set forth in subsections (a) and (b) of this Section 7.2 applicable to such party have been satisfied;
(d) From and after the date hereof, there shall have been no change, event, effect or circumstances that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect;
(e) Purchaser shall have received the closing deliverables set forth in Section 2.4(b);
(f) Purchaser shall have received satisfactory evidence that each Complying Circular 75 Security Holder has complied with the reporting and/or registration requirements under the SAFE Rules and Regulations; and
(g) Purchaser shall have received satisfactory evidence that the Company Transaction Expenses due and payable on or prior to the Closing Date have been paid.
Appears in 1 contract
Additional Conditions to Obligations of Purchaser. The obligation obligations of Purchaser to consummate the transactions contemplated by this Agreement is are subject to the fulfillment satisfaction (or waiver by Purchaser, on or prior to ) of the following additional conditions as of the Closing Date, of each of the following conditions:
(a) (i) The representations and warranties set forth in Each of the Fundamental Representations, except for Section 3.2 (Ownership of Acquired Shares5.4(b), Section 4.3 (Capitalization), Section 4.13 (Real Property) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier), Section 4.16 (Material Contracts), Section 4.20 (Absence of Certain Changes) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) 5.15 and Section 4.21 (Circular 75 Registration) 5.24, shall be true and correct on and as of the Closing Date, (ii) the representations and warranties set forth in Section 3.3 (Authorization) and Section 4.2 (Authorization) shall be true and correct on date of this Agreement and as of the Closing Date in all material respects, (iii) the other representations and warranties of the Company set forth in this Agreement (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) shall be true and correct as though made on and as of the Closing Date (except to the extent any such representations and warranties shall have been expressly made Fundamental Representation speaks only as of an earlier datea specific date (other than the date of this Agreement), in which case such representations and warranties Fundamental Representation shall have been be true and correct as of such earlier date); provided that Section 5.2 (Capitalization of the Company), shall be true and correct in all respects (ivother than for inaccuracies that are, in the aggregate, de minimis) as of the date of this Agreement and as of the Closing Date as though made on and as of such date.
(b) Each of the other representations and warranties of Sellers Seller and the Company set forth in this Agreement ARTICLE IV and ARTICLE V, including Section 5.4(b), Section 5.15 and Section 5.24 (disregarding all qualifications or limitations as to “materiality”, “material adverse effect” and words of similar import set forth therein), shall be true and correct on in all material respects as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent any such representation or warranty speaks only as of a specific date (other than the date of this Agreement), in which case such representation or warranty shall be true and correct in all material respects; providedrespects as of such date), howeverexcept, that in the event case of a breach of a representation and warranty of the type described in this Section 7.2(a)(iii) by 9.2(b), where the Company, the condition set forth in this Section 7.2(a)(iii) shall be deemed satisfied unless the failures failure of such representations and warranties to be so true and correct, individually or in the aggregate, has had, would have, or would reasonably be expected to have, correct does not constitute a Material Adverse Effect;
(bc) The Seller and the Company and Sellers shall have performed or complied in all material respects with all covenants and agreements and covenants required by this Agreement to be performed or complied with by them respectively under this Agreement on or prior to the Closing Date;
(cd) Purchaser shall have received a certificate of an executive officer of each of since the Company and Sellers that the conditions set forth in subsections (a) and (b) date of this Section 7.2 have been satisfied;
(d) From and after the date hereofAgreement, there shall not have been no change, event, effect or circumstances that, individually or in the aggregate, has had or would reasonably be expected to have a any Material Adverse Effect;
(e) Purchaser shall have received a certificate, dated the closing deliverables set forth Closing Date and duly executed by an authorized officer of the Company, stating that the conditions specified in Section 2.4(b9.2(a), Section 9.2(b) and Section 9.2(c), in each case, as they relate to the Company and Section 9.2(d), have been satisfied;
(f) Purchaser shall have received satisfactory evidence a certificate, dated the Closing Date and duly executed by the Trustee, stating that the conditions specified in Section 9.2(a), Section 9.2(b) and Section 9.2(c), in each Complying Circular 75 Security Holder has complied with the reporting and/or registration requirements under the SAFE Rules and Regulations; andcase, as they relate to Seller, have been satisfied;
(g) Purchaser shall have received from the Trustee its certificate as to its approval of the Contemplated Transactions, in form and substance reasonably satisfactory evidence that to Purchaser, which shall include a copy of the Company Transaction Expenses due and payable ESOP Fairness Opinion; and
(h) Purchaser shall have received from Seller each delivery required pursuant to Section 2.5. No waiver by Purchaser of any condition based on the accuracy of any representation or prior warranty of Seller or the Company, or on Seller’s or the Company’s performance of or compliance with any covenant or agreement, will affect any right to the Closing Date have been paidindemnification or other remedy of Purchaser or any other Purchaser Indemnified Party provided for in this Agreement based on such representation, warranty, covenant or agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Distribution Solutions Group, Inc.)
Additional Conditions to Obligations of Purchaser. The obligation obligations of Purchaser to consummate the transactions contemplated by this Agreement is Share Purchase are subject to the fulfillment or waiver by Purchasersatisfaction, on at or prior to the Closing DateClosing, of each of the following conditions:conditions (any or all of which may be waived by Purchaser in whole or in part in its sole discretion):
(a) each of the representations and warranties regarding the Seller (i) The contained in the first sentence of Section 4.1 (Organization and Good Standing), Section 4.2 (Capitalization) and Section 4.3 (Authority; Execution and Delivery; Enforceability) shall be true and correct in all but de minimis respects as of the Closing as though made as of the Closing (except for any such representations and warranties set forth that are made at or as of a specific date or time, which representations and warranties shall be so true and correct only at and as of such specific date or time), (ii) contained in Section 3.2 4.1 (Ownership Organization and Good Standing) (other than the first sentence of Acquired Shares)Section 4.1) shall be true and correct in all material respects as of the Closing as though made as of the Closing (except for any such representations and warranties that are made at or as of a specific date or time, which representations and warranties shall be so true and correct only at and as of such specific date or time) and (iii) contained in Article IV (other than the representations and warranties contained in Section 4.1, Section 4.3 (Capitalization), 4.2 and Section 4.13 (Real Property4.3) shall be true and correct (without regard giving effect to any “material,” materiality, “Material Adverse Effect” or similar qualifications set forth therein) as of the Closing as though made as of the Closing (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except, in the case of this clause (ii), where the failure of such representations or warranties to be true and correct has not had, and would not reasonably be expected to have, a material adverse effect on the ability of the Seller to consummate the Share Purchase and the other materiality qualifiertransactions applicable to the Seller contemplated by this Agreement to occur at the Closing;
(b) each of the representations and warranties regarding the Company (i) contained in Section 5.7(b) (Material Adverse Effect) shall be true and correct as of the Closing as though made as of the Closing, (ii) contained in the first sentence of Section 5.1(a) (Organization and Good Standing), the first two sentences of Section 5.2(a) (Capitalization) and Section 5.3 (Authority; Execution and Delivery; Enforceability) shall be true and correct in all but de minimis respects as of the Closing as though made as of the Closing (except for any such representations and warranties that are made at or as of a specific date or time, which representations and warranties shall be so true and correct only at and as of such specific date or time), (iii) contained in Section 5.1(a) (Organization and Good Standing) (other than the first sentence thereof), Section 4.16 5.2(a) (Material ContractsCapitalization) (other than the first two sentences thereof) and the last sentence of Section 5.2(c) shall be true and correct in all material respects as of the Closing as though made as of the Closing (except for any such representations and warranties that are made at or as of a specific date or time, which representations and warranties shall be so true and correct only at and as of such specific date or time) and (iv) contained in Article V (other than the representations and warranties contained in Section 5.1(a), Section 4.20 (Absence 5.2(a), the last sentence of Certain ChangesSection 5.2(c), Section 5.3 and Section 5.7(b)) shall be true and correct (without regard giving effect to any “material,” materiality, “Material Adverse Effect” or other materiality qualifiersimilar qualifications set forth therein) as of the Closing as though made as of the Closing (or, in the case of representations and Section 4.21 warranties that address matters only as of a particular date, as of such date), except, in the case of this clause (Circular 75 Registration) shall iv), where the failure of such representations or warranties to be true and correct on and as of the Closing Date, (ii) the representations and warranties set forth in Section 3.3 (Authorization) and Section 4.2 (Authorization) shall be true and correct on and as of the Closing Date in all material respects, (iii) the other representations and warranties of the Company set forth in this Agreement (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) shall be true and correct on and as of the Closing Date (except to the extent such representations and warranties shall have been expressly made as of an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date)has not had, and (iv) the other representations and warranties of Sellers set forth in this Agreement shall be true and correct on and as of the Closing Date in all material respects; provided, however, that in the event of a breach of a representation and warranty of the type described in this Section 7.2(a)(iii) by the Company, the condition set forth in this Section 7.2(a)(iii) shall be deemed satisfied unless the failures of such representations and warranties to be so true and correct, individually or in the aggregate, has had, would have, or would not reasonably be expected to have, a Material Adverse Effect;
(b) The Company and Sellers shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them respectively on or prior to the Closing Date;
(c) Purchaser shall have received a certificate of an executive officer of each of the Company and Sellers that the conditions set forth in subsections (a) and (b) of this Section 7.2 have been satisfied;
(d) From and after the date hereof, there shall have been no change, event, effect or circumstances that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect;
(e) Purchaser shall have received the closing deliverables set forth in Section 2.4(b);
(f) Purchaser shall have received satisfactory evidence that each Complying Circular 75 Security Holder has complied with the reporting and/or registration requirements under the SAFE Rules and Regulations; and
(g) Purchaser shall have received satisfactory evidence that the Company Transaction Expenses due and payable on or prior to the Closing Date have been paid.
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Sources: Stock Purchase Agreement (Arthur J. Gallagher & Co.)
Additional Conditions to Obligations of Purchaser. The obligation of Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment or waiver by Purchaserfulfillment, on or prior to the Closing Date, of each of the following conditions:conditions (any or all of which may be waived by Purchaser in whole or in part in its sole discretion):
(a) (i) The representations and warranties set forth in Section 3.2 (Ownership of Acquired Shares), Section 4.3 (Capitalization), Section 4.13 (Real Property) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier), Section 4.16 (Material Contracts), Section 4.20 (Absence of Certain Changes) (without regard to any “material,” “Material Adverse Effect” or other materiality qualifier) and Section 4.21 (Circular 75 Registration) shall be true and correct on and as of the Closing Date, (ii) the representations and warranties set forth in Section 3.3 (Authorization) of Honeywell and Section 4.2 (Authorization) shall be true and correct on and as of the Closing Date in all material respects, (iii) the other representations and warranties of the Company set forth Sellers contained in this Agreement (without regard to disregarding any “material,” “IAS Material Adverse Effect” , materiality or other materiality qualifiersimilar qualifiers therein) shall be true and correct on and as of the Closing Date (except to the extent such representations and warranties shall have been expressly made as of an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date), ) with the same force and (iv) the other representations and warranties of Sellers set forth in this Agreement shall be true and correct effect as if made on and as of the Closing Date in all material respects; providedDate, however, except to the extent that in the event of a breach of a representation and warranty of the type described in this Section 7.2(a)(iii) by the Company, the condition set forth in this Section 7.2(a)(iii) shall be deemed satisfied unless the any failures of such representations and warranties to be so true and correct, individually or in the aggregate, has had, correct would have, or would not reasonably be expected to have, a have resulted in an IAS Material Adverse Effect;
(b) The Company Honeywell and the Sellers shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them respectively on or prior to the Closing Date, except in the case of the agreements and covenants contained in Section 5.11(a), which Honeywell and the Sellers shall have performed or complied with in all respects;
(c) Purchaser shall have received (i) a certificate of an executive officer of each of Honeywell and the Company and Sellers that the conditions set forth in subsections paragraphs (a) and (b) of this Section 7.2 above have been satisfied, (ii) certified copies of the resolutions of the boards of directors or similar governing bodies of each of Honeywell and the Sellers authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby, if any, to which it is a party and the consummation of the transactions contemplated hereby and thereby and (iii) good standing certificates for each of the Companies and their Subsidiaries from their respective jurisdictions of incorporation or organization (but only if such concept is recognized in such jurisdictions and only to the extent good standing certificates are reasonably available in such jurisdictions from appropriate Governmental Authorities), in each case dated as of a recent date prior to the Closing Date;
(d) From and after since the date hereofof this Agreement, there shall have has been no event, condition or change, or worsening of any existing event, effect condition or circumstances thatchange, individually or in the aggregate, has had or that would reasonably be expected to have a an IAS Material Adverse Effect;
(e) the lender(s) party to the Debt Commitment Letter (or any agreements relating to alternative sources of debt financing that may be entered into by Purchaser pursuant to Section 5.7) shall have received funded the closing deliverables set forth portion of the Purchase Price and any related transaction costs and any letters of credit required hereunder in the amounts specified in the Debt Commitment Letter and, after giving effect to such funding and issuance and assuming that Purchaser has sought to obtain the maximum amounts available under the Senior Notes and the Bridge Facility (as such terms are defined in the senior facility term sheet attached to the Debt Commitment Letter) as permitted under the Debt Commitment Letter, Purchaser (and its Affiliates who are borrowers) will be able to borrow additional loans under the Senior Facility (as defined in the senior facility term sheet attached to the Debt Commitment Letter) in an amount not less than $90,000,000; provided, that the foregoing shall not be a condition under this Agreement in the event that a breach by Purchaser of its obligations under the Debt Commitment Letter (or any agreements relating to alternative sources of debt financing that may be entered into by Purchaser pursuant to Section 2.4(b);5.7) has caused the funding thereunder not to occur; provided, further, that, for the avoidance of doubt, Purchaser may not assert the failure of the foregoing condition to be satisfied in the event that funding of the amounts specified in the Debt Commitment Letter occurs pursuant to the exercise of any “market flex” or similar provision; and
(f) Purchaser Novar USA Holdings shall have received satisfactory evidence that each Complying Circular 75 Security Holder has complied with the reporting and/or registration requirements under the SAFE Rules and Regulations; and
(g) delivered to Purchaser shall have received satisfactory evidence that the Company Transaction Expenses due and payable on or prior to a non-foreign affidavit dated as of the Closing Date have been paidin the form and substance required under the Treasury Regulations issued pursuant to Section 1445 of the Code so that Purchaser is exempt from withholding any portion of the Purchase Price thereunder.
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