Termination by the Sellers The Sellers may terminate the Agreement in the event either Purchaser or the Guarantor (if any of the proceedings with respect to the Guarantor in the following clauses (i) through (iv) below would reasonably be expected to impair the ability of either Purchaser to perform its obligations under the Agreement (including Article 8 of the Agreement and this Annex A) fully and on a timely basis) (i) becomes the subject of any bankruptcy or other proceeding relating to its liquidation or insolvency (if not dismissed within sixty (60) days of initial filing), or is the subject of a receivership or conservatorship, (ii) files a voluntary petition in bankruptcy or similar proceeding or admits in writing its inability to pay its debts as they become due, (iii) makes a general assignment for the benefit of creditors, or (iv) files a petition or an answer seeking reorganization or an arrangement with creditors.
Deliveries by the Sellers At the Closing, the Sellers shall deliver, or cause to be delivered, to Buyer the following:
(a) an instrument of assignment executed by each Seller, in form and substance reasonably acceptable to Buyer, evidencing the transfer of its respective Acquired Interests to Buyer, free and clear of all Liens;
(i) a copy of the certificate of formation (or equivalent organizational document) of the Company certified by the secretary of state (or equivalent Governmental Authority) of the jurisdiction of organization of the Company, (ii) a copy of the limited liability company or operating agreement of the Company, and (iii) a copy of the resolutions of the governing body of the Company authorizing the transactions contemplated by this Agreement, to the extent required by the Company’s limited liability company agreement, each certified by an officer of the Company;
(c) a certificate of the New Hampshire Secretary of State as to the good standing of the Company in such jurisdiction, dated no earlier than thirty (30) days prior to the Closing Date;
(d) written resignations of the managers and officers of the Company designated by ▇▇▇▇▇ at least two (2) Business Days prior to the Closing Date, effective as of the Closing, in form and substance reasonably acceptable to Buyer;
(e) pay-off letter(s) and Lien release documentation and/or authorization from the lender(s) or other payee(s) of the Pay-Off Indebtedness, in form and substance reasonably acceptable to Buyer, setting forth the full amount due and owing as of the Closing Date necessary for the satisfaction and discharge of all such indebtedness;
(f) invoices or other documentation from the payee(s) of the Closing Selling Expenses, in form and substance reasonably acceptable to Buyer, setting forth the full amount due and owing as of the Closing Date necessary for the satisfaction and discharge of all such expenses;
(g) an Investor Representation and Lock-Up Agreement between Buyer and each Seller, substantially in the form attached hereto as Exhibit C, dated as of the Closing Date and executed by such Seller (the “Lock-Up Agreements”);
(h) a duly completed and properly executed IRS Form W-9 from each Seller (or if the applicable Seller is disregarded as separate from its owner for U.S. federal income Tax purposes, the applicable direct or indirect parent of such Seller) and Sellers’ Representative, in each case dated as of the Closing Date;
(i) all approvals, consents, estoppels and waivers set forth on Schedule 2.5, duly executed by the applicable party or parties;
(j) a landlord estoppel and consent to assignment of lease, substantially in the form attached hereto as Exhibit D, dated as of the Closing Date and executed by the Company and the applicable landlord (the “Lease Consent”);
(k) evidence reasonably satisfactory to Buyer that all phantom stock plans, agreements or similar equity-based compensation arrangements of the Company (collectively, “Phantom Stock Plans”) have been (or will be as a result of the Closing) terminated and settled, which termination shall include a release from each participant in any Phantom Stock Plan that such participant has no further right or claims with respect thereto;
(l) evidence reasonably satisfactory to Buyer that (i) any and all limited liability company agreements, operating agreements, buy-sell agreements or similar agreements with respect to the Company, and (ii) any and all Contracts with any Affiliates of any Seller have been terminated without liability to Buyer or any Buyer Affiliated Company (including the Company after the Closing);
(m) the Escrow Agreement duly executed by Sellers’ Representative and the Escrow Agent;
(n) an Irrevocable Proxy by the Sellers, substantially in the form attached hereto as Exhibit E, dated as of the Closing Date and executed by the Sellers; and
(o) such other deliverables requested by ▇▇▇▇▇ as may be necessary or appropriate to effect the transactions contemplated hereby.
Indemnification by the Shareholders In connection with any registration statement in which a Shareholder is participating, each such Shareholder will furnish to the Company in writing such information and affidavits with respect to such Shareholder as the Company reasonably requests for use in connection with any registration statement or prospectus covering the Registrable Securities of such Shareholder and to the extent permitted by law agrees to indemnify and hold harmless the Company, its directors, officers and agents and each Person who controls (within the meaning of the 1933 Act or the ▇▇▇▇ ▇▇▇) the Company, against any losses, claims, damages, liabilities and expenses arising out of or based upon any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements in the registration statement or prospectus or preliminary prospectus (in the case of the prospectus or preliminary prospectus, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that such untrue statement or omission is made in reliance on and in conformity with the information or affidavit with respect to such Shareholder so furnished in writing by such Shareholder expressly for use in the registration statement or prospectus; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Shareholders and the liability of each such Shareholder shall be in proportion to and limited to the net amount received by such Shareholder from the sale of Registrable Securities pursuant to a registration statement in accordance with the terms of this Agreement. The indemnity agreement contained in this Section 5.05 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such seller (which consent shall not be unreasonably withheld or delayed). The Company and the holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such holders, the only information furnished or to be furnished to the Company for use in any registration statement or prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated therewith are statements specifically relating to (a) transactions or the relationship between such holder and its Affiliates, on the one hand, and the Company, on the other hand, (b) the beneficial ownership of shares of Common Stock by such holder and its Affiliates, (c) the name and address of such holder and (d) any additional information about such holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document.
Deliveries by the Seller Subject to the conditions set forth in this Agreement, at or prior to the Closing, the Seller shall deliver or cause to be delivered to Buyer:
(a) the Rights Agreement, duly executed by the Seller ;
(b) a ▇▇▇▇ of sale and assignment agreement, in form and substance reasonably satisfactory to the Buyer (the “▇▇▇▇ of Sale”), duly executed by Seller;
(c) the subscription list in respect of the Buyer Stock Closing Consideration, duly executed by the Seller (the “Subscription List”);
(d) duly executed assignment and assumption documents or instruments (in form and substance reasonably satisfactory to Buyer and Seller) assigning to Buyer all right, title and interest in and to the Intellectual Property Rights included in the Acquired Assets and pursuant to which Buyer assumes all the Assumed Liabilities;
(e) a certificate, dated as of the Closing Date, executed by an authorized officer of Seller, certifying (i) the incumbency of each officer executing this Agreement or any other documents and instruments to be executed and delivered pursuant hereto on behalf of Seller and (ii) that attached thereto are true and complete copies of all resolutions of the board of directors (or equivalent governing body) and holders of voting securities of the Seller authorizing the transactions contemplated hereby or otherwise relating to this Agreement and the transactions contemplated hereby, and that all such resolutions are in full force and at and as of the Closing Date;
(f) the Seller Closing Certificate;
(g) evidence of the termination and release of any Encumbrance (other than Permitted Encumbrances) on any Acquired Asset, if applicable, in form and substance acceptable to Buyer;
(h) the OCS Approval duly executed by the OCS;
(i) subject to the provisions of Section 6.12 true, correct and complete copies of all Product Records currently possessed by the Seller;
(j) the Valid Israeli Tax Certificate;
(k) a true, correct and complete list of all Contracts that contain nondisclosure or confidentiality obligations that are binding on the Company with respect to the Business; and
(l) such other instruments of conveyance and transfer, in form reasonably satisfactory to Buyer and its counsel, as shall be necessary and effective to transfer and assign to, and vest in, Buyer all of Seller’s right, title and interest in and to the Acquired Assets, and simultaneously with such deliveries, all such steps will be taken by Seller as may be required to put Buyer in actual possession and operating control of the Acquired Assets.
Purchase of the Shares by the Underwriters (a) The Company agrees to issue and sell the Underwritten Shares to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective number of Underwritten Shares set forth opposite such Underwriter’s name in Schedule 1 hereto at a price per share (the “Purchase Price”) of $[ ]. In addition, the Company agrees to issue and sell the Option Shares to the several Underwriters as provided in this Agreement, and the Underwriters, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, shall have the option to purchase, severally and not jointly, from the Company the Option Shares at the Purchase Price less an amount per share equal to any dividends or distributions declared by the Company and payable on the Underwritten Shares but not payable on the Option Shares. If any Option Shares are to be purchased, the number of Option Shares to be purchased by each Underwriter shall be the number of Option Shares which bears the same ratio to the aggregate number of Option Shares being purchased as the number of Underwritten Shares set forth opposite the name of such Underwriter in Schedule 1 hereto (or such number increased as set forth in Section 10 hereof) bears to the aggregate number of Underwritten Shares being purchased from the Company by the several Underwriters, subject, however, to such adjustments to eliminate any fractional Shares as the Representatives in their sole discretion shall make. The Underwriters may exercise the option to purchase Option Shares at any time in whole, or from time to time in part, on or before the thirtieth day following the date of the Prospectus, by written notice from the Representatives to the Company. Such notice shall set forth the aggregate number of Option Shares as to which the option is being exercised and the date and time when the Option Shares are to be delivered and paid for, which may be the same date and time as the Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date or later than the tenth full business day (as hereinafter defined) after the date of such notice (unless such time and date are postponed in accordance with the provisions of Section 10 hereof). Any such notice shall be given at least two business days prior to the date and time of delivery specified therein.
(b) The Company understands that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any affiliate of an Underwriter.
(c) Payment for the Shares shall be made by wire transfer in immediately available funds to the account specified by the Company to the Representatives in the case of the Underwritten Shares, at the offices of ▇▇▇▇▇ Day, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00 A.M., New York City time, on [ ], 2014, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing or, in the case of the Option Shares, on the date and at the time and place specified by the Representatives in the written notice of the Underwriters’ election to purchase such Option Shares. The time and date of such payment for the Underwritten Shares is referred to herein as the “Closing Date”, and the time and date for such payment for the Option Shares, if other than the Closing Date, is herein referred to as an “Additional Closing Date”. Payment for the Shares to be purchased on the Closing Date or an Additional Closing Date, as the case may be, shall be made against delivery to the Representatives for the respective accounts of the several Underwriters of the Shares to be purchased on the Closing Date or the Additional Closing Date, as the case may be, with any transfer taxes payable in connection with the sale of such Shares duly paid by the Company. Delivery of the Shares shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct.
(d) The Company acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company.