Closing Deliverables. (a) At Closing, the Seller shall deliver, or cause to be delivered, to the Buyer each of the following: (i) As required by Section 3.4(h), certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyer; (ii) The certificates required under Section 3.4(a), (b), (e), and (i); (iii) As required under Section 3.4(g), a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales; (iv) Duly executed resignations, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f); (v) The Transition Services Agreement; (vi) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3; (vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder; (viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer; (ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries; (x) The IP Release; and (xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents. (b) At Closing, the Buyer shall deliver, or cause to be delivered, to the Seller the following: (i) The Closing Purchase Price in accordance with Section 2.3; (ii) The certificates required to be delivered pursuant to Section 3.5(a), (b), and (d); (iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation; (iv) The Transition Services Agreement; and (v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction Documents.
Appears in 1 contract
Sources: Stock Purchase Agreement (Standex International Corp/De/)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required a certificate signed by Section 3.4(h)an authorized officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such authorized officer, the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyer;
(ii) The certificates required under conditions specified in Section 3.4(a6.3(a), (b), (e), c) and (i)e) have been satisfied;
(ii) duly executed counterparts to each of the Transaction Documents to be entered into by the Company, the Shareholders, or the Key Personnel;
(iii) As required under Section 3.4(g), a certificate copies of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued certified resolutions approved and actions taken by the applicable agency Company’s sole director and the Shareholders in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by connection with the applicable agency shall be applied for upon execution approval of this Agreement, shall be effective as of Agreement and the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesTransactions;
(iv) Duly executed resignationsall other documents, effective as of instruments or certificates required to be delivered by the Closing, of each officer, director and manager of each Subsidiary as provided in Company at or prior to the Closing pursuant to Section 3.4(f);6.3; and
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer such other documents or certificates as shall be entitled to proceed with reasonably determined by the Closing SPAC and be entitled to withhold the amount required its legal counsel to be withheld pursuant required in order to Section 1445 of consummate the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsTransactions.
(b) At the Closing, the Buyer shall deliver, SPAC will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price to the Exchange Agent, the number of SPAC Class A Ordinary Shares and SPAC Class B Ordinary Shares to be paid in respect of the Company Ordinary Shares in accordance with Section 2.32.8(b), for further distribution to the Shareholders;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an authorized officer of the SPAC, dated as of the Closing Date, certifying that, to the knowledge and belief of such authorized officer, the conditions specified in Section 3.5(a6.1(f) and Section 6.2(a), (b), (c) and (d)e) have been satisfied;
(iii) As provided in Section 3.5(e)to the Company, the Transaction Documents to be entered into by the SPAC and the Sponsor, as applicable, duly executed by a certificate of good standing for the Buyer as of a date within three (3) Business Days duly authorized representative of the Closing issued by SPAC and the applicable agency in its jurisdiction of formationSponsor;
(iv) The Transition Services Agreementto the Company, the written resignation letters of all of the directors and officers of the SPAC that are not remaining on the board of directors of the SPAC (the “SPAC Board”) after the Effective Time, in accordance with the provisions of Section 2.5(a)), effective as of the Effective Time;
(v) to the Company, copies of certified resolutions and actions taken by the SPAC’s and M▇▇▇▇▇ Sub’s board of directors and shareholders in connection with the approval of this Agreement and the Transactions;
(vi) all other documents, instruments or certificates required to be delivered by the SPAC at or prior to the Closing pursuant to Section 6.2; and
(vvii) Such such other documents or certificates as shall be reasonably determined by the Seller may reasonably request Company and its legal counsel to give effect be required in order to this Agreement or consummate the Transaction DocumentsTransactions.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(c) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued Registration Rights Agreement, duly executed by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by Major Company Stockholders who have elected to execute the applicable agency shall be applied for upon execution of this Registration Rights Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;; and
(iv) Duly executed resignations(1) an original signed statement from the Company, effective that the Company is not, and has not been at any time during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States real property holding corporation”, as defined in Section 897(c)(2) of the Code, conforming to the requirements of Treasury Regulations Section 1.1445-2(c)(3) and 1.897-2(h) and reasonably satisfactory to Acquiror, and (2) an original signed notice to be delivered to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2), together with written authorization for Acquiror to deliver such notice to the IRS on behalf of the Company following the Closing, each dated as of the ClosingClosing Date, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each duly executed by an authorized officer of the consents, approvalsCompany, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable satisfactory to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsAcquiror.
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with to the Exchange Agent, the Aggregate Merger Consideration for further distribution to the Company’s stockholders pursuant to Section 2.33.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement, duly executed by duly authorized representatives of good standing for Acquiror and the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;Sponsor; and
(iv) The Transition Services Agreement; andto the Company, the written resignations of all of the directors and officers of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Effective Time.
(vc) Such At the Closing, unless other documents arrangements for Unpaid Transaction Expenses are mutually agreed by the Acquiror and the Company, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, (i) all accrued transaction expenses of Acquiror and those incurred, accrued, paid or payable by Acquiror’s Affiliates on Acquiror’s behalf (which shall include any outstanding amounts under any Working Capital Loans) as set forth on a written statement to be delivered to the Seller may reasonably request Company not less than two (2) Business Days prior to give effect the Closing Date and (ii) all accrued and unpaid Transaction Expenses (“Unpaid Transaction Expenses”) as set forth on a written statement to this Agreement be delivered to Acquiror by or on behalf of the Company not less than two (2) Business Days prior to the Closing Date, which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided, that any Unpaid Transaction DocumentsExpenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (Welsbach Technology Metals Acquisition Corp.)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyerconditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for the Registration Rights Agreement and each Subsidiary of a date within three (3) Business Days Lock-Up Agreement, duly executed by each of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesCompany Stockholders;
(iv) Duly executed resignationsto Acquiror, effective as evidence that all Affiliate Agreements set forth on Section 6.5 of the ClosingCompany Disclosure Letter have been terminated or settled at or prior to the Closing without further liability to Acquiror, the Company or any of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);the Company’s Subsidiaries; and
(v) The Transition Services Agreement;
to Acquiror, a certificate on behalf of the Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulation Sections 1.897-2(g), (vih) As provided and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(c), each 897(c)(1)(A)(ii) of the consentsCode, approvalsa “U.S. real property interest” within the meaning of Section 897(c) of the Code, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the a form of notice to the sample certification set forth Internal Revenue Service prepared in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed accordance with the Closing and be entitled to withhold the amount required to be withheld pursuant to provisions of Treasury Regulations Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents1.897-2(h)(2).
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with to the Exchange Agent, the Net Merger Consideration for further distribution to the Company’s stockholders pursuant to Section 2.33.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement and each Lock-Up Agreement, duly executed by duly authorized representatives of good standing for Acquiror and the Buyer as of a date within three (3) Business Days Sponsor and each of the Closing issued by other parties listed on Schedule I of the applicable agency in its jurisdiction of formationSponsor Support Agreement;
(iv) The Transition Services Agreementto the Company, the written resignations of all of the directors and officers of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Effective Time; and
(v) Such other documents to the Company, a time stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation to the Domestication.
(c) On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, (i) all accrued transaction expenses of Acquiror and those incurred, accrued, paid or payable by Acquiror’s Affiliates on Acquiror’s behalf (which shall include any outstanding amounts under any Working Capital Loans) as set forth on a written statement to be delivered to the Seller may reasonably request Company not less than two (2) Business Days prior to give effect the Closing Date and (ii) all accrued and unpaid Transaction Expenses (“Unpaid Transaction Expenses”) as set forth on a written statement to this Agreement be delivered to Acquiror not less than two (2) Business Days prior to the Closing Date, in each case of clauses (i) and (ii), which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices therefor; provided, that any Unpaid Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Transaction DocumentsCompany or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll.
Appears in 1 contract
Closing Deliverables. Subject to the terms and conditions set forth in this Agreement, the parties shall consummate the following transactions at the Closing:
(a) At ClosingThe Company or the Stakeholder Representative, the Seller shall deliveras applicable, or cause will deliver to be delivered, to the Buyer Parent and Merger Sub each of the following:
(i) As required by Section 3.4(h)a copy of the Escrow Agreement, certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to by the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the BuyerStakeholder Representative;
(ii) The certificates required under Section 3.4(a), (b), (e), and (i)a copy of the Registration Rights Agreement duly executed by the Designated Stockholders;
(iii) As required under Section 3.4(g)a copy of each Payoff Letter, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued duly executed by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogalescounterparties thereto;
(iv) Duly copies of all Accredited Investor Certifications, duly executed resignationsby each Designated Stockholder, effective as stating, among other things, that such Stockholder is an “accredited investor” within the meaning of Regulation D promulgated under the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(fSecurities Act (“Accredited Investor”);
(v) The Transition Services Agreementevidence satisfactory to Parent of the resignation of each of the directors and each of the officers of the Company and its Subsidiaries in office immediately prior to the Effective Time from his or her position as an officer or director, as applicable, as directed by Parent at least three Business Days prior to Closing, in each case to be effective no later than immediately prior to the Effective Time; it being acknowledged and agreed that any such resignation shall not constitute a “resignation” or a termination of employee’s employment “without cause” or for “good reason” pursuant to any employment agreement to which such Person and the Company or any of its Subsidiaries is party;
(vi) As provided the Spreadsheet (as such term is defined in Section 3.4(c2.06(b), each ) completed to include all of the consentsinformation specified in Section 2.06(b) in a form reasonably acceptable to Parent and a certificate executed by the Chief Executive Officer of the Company, approvalsdated as of the Closing Date, certifying that such Spreadsheet is true, correct and waivers that are listed on Schedule 4.3complete;
(vii) A a certificate, duly executed certificate by the Company under penalties of non-foreign status perjury, dated as of the Seller, substantially Closing Date in the form required under Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c) and reasonably satisfactory to Parent, and a notice to the Internal Revenue Service in accordance with the provisions of the sample certification set forth in Treasury Regulation Section 1.14451.897-2(b)(2)(iv)(B) (a “FIRPTA Certificate”2(h)(2); provided, that if duly executed by the Seller fails Company and in form reasonably satisfactory to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunderParent;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable good standing certificate for the Company from the Secretary of State of the State of Delaware dated as of a date not earlier than five Business Days prior to the Buyer, and any other Tax forms as may be reasonably requested by the BuyerClosing Date;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each a copy of the Subsidiaries;resolutions or written consent of (A) the Company’s board of directors and (B) the Designated Stockholders, in each case approving this Agreement, the Merger and the transactions contemplated hereby, duly certified by a duly authorized officer of the Company; and
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request certificate referred to give effect to this Agreement or the Transaction Documentsin Section 1.07(c).
(b) At Closing, the Buyer shall deliver, or cause to be delivered, Parent and Merger Sub will deliver to the Seller Company each of the following:
(i) The Closing Purchase Price in accordance with Section 2.3;a copy of the Escrow Agreement, duly executed by Parent; and
(ii) The certificates required a copy of the Registration Rights Agreement, duly executed by Parent.
(c) Parent will deposit the Indemnity Escrow Shares and the Adjustment Escrow Amount with the Escrow Agent in accordance with the terms of the Escrow Agreement.
(d) Parent will deposit the Administrative Expense Amount with the Stakeholder Representative.
(e) Parent will repay, or cause to be repaid, on behalf of the Company and its Subsidiaries (including the Surviving Corporation), all amounts necessary to discharge fully the then outstanding balance of all Indebtedness identified on Schedule 3.06(e), by wire transfer of immediately available funds to the account(s) designated by the holders of such Indebtedness in the Payoff Letters.
(f) Parent will pay, or cause to be paid, on behalf of the Company and its Subsidiaries (including the Surviving Corporation), all amounts necessary to discharge fully the then outstanding balance of all Transaction Expenses set forth on a certified statement to be delivered pursuant by the Company to Section 3.5(a), (b), and (d);
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within Parent no later than three (3) Business Days prior to the Closing, by wire transfer of immediately available funds, to the Closing issued account(s) designated by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as Stakeholder Representative no later than three Business Days prior to the Seller may reasonably request to give effect to this Agreement or the Transaction DocumentsClosing.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller shall Stockholders will deliver, or cause to be delivered, to the Buyer each of the followingSurviving Entity:
(i) As required by Section 3.4(h), certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyerreserved;
(ii) The certificates required under Section 3.4(arestrictive covenant agreements, substantially in the form set forth on Exhibit C, (each, a “Restrictive Covenant Agreement”), (b), (e), and (i)duly countersigned by each of the Stockholders;
(iii) As required under Section 3.4(gemployment agreements, substantially in the form set forth on Exhibit D, (each, a “Stockholder Employment Agreement”), duly countersigned by each of the Stockholders;
(iv) employment agreements, substantially in the form set forth on Exhibit E, (each, an “Employment Agreement”), duly countersigned by each of A▇▇▇▇▇ ▇▇▇▇▇▇▇, R▇▇▇▇▇ ▇▇▇▇▇▇, and T▇▇▇▇▇ ▇▇▇▇▇▇▇;
(v) A certified copy of the Company’s certificate of incorporation filed with, and a certificate of good standing for each Subsidiary (or its equivalent) of a date within three the Company from, the State of New Jersey Division of Revenue and Enterprise Services, dated not earlier than five (35) Business Days of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of prior to the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignations, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreementhereof;
(vi) As provided in Section 3.4(c), each A certified copy of the consents, approvalsHoldco’s certificate of incorporation filed with, and waivers that are listed on Schedule 4.3a certificate of good standing of Holdco from, the Secretary of State of Delaware, dated not earlier than five (5) Business Days prior to the date hereof;
(vii) A duly executed certificate payoff letters from each holder of non-foreign status Company Indebtedness other than the Kaunitz Note, wire instructions, forms of security interest termination statements to be filed promptly upon satisfaction of such Company Indebtedness and any other evidence of payment of the Seller, substantially Closing Indebtedness Amount (other than the Note Amount) in full and instruments necessary to effect the form release of all Encumbrances on the assets and properties of the sample certification set forth Company, in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 each case in a form and substance reasonably acceptable to the Buyer, Surviving Entity;
(viii) an IRS Form W-9 from Holdco and any other Tax forms as may be reasonably requested by the Buyereach Stockholder;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the SubsidiariesCompany Records;
(x) The IP Releaseduly executed resignation letters of each and every officer, director, member and manager of the Company, in form and substance reasonably acceptable to the Surviving Entity;
(xi) the Escrow Agreement, duly executed by the Stockholders;
(xii) evidence, in form and substance reasonably satisfactory to the Surviving Entity, that the Pre-Closing Reorganization is complete; and
(xixiii) Such other documents as evidence of receipt of all consents listed on Schedule 3.2(a)(xiii) in form and substance reasonably acceptable to the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsSurviving Entity.
(b) At the Closing, the Buyer shall Surviving Entity will deliver, or cause to be delivered, to the Seller the followingStockholders:
(i) The the Closing Purchase Price in accordance with Section 2.3Cash Consideration;
(ii) The certificates required to be delivered pursuant to Section 3.5(a), (b), and (d)evidence of the request of the book entry Surviving Entity Common Stock representing the Closing Share Consideration;
(iii) As provided in Section 3.5(e)within five (5) Business Days after the Closing Date, book-entry evidencing the Closing Share Consideration;
(iv) A certified copy of the Surviving Entity’s articles of incorporation filed with, and a certificate of good standing for (or its equivalent) of the Buyer as Surviving Entity from, the Secretary of a date within three State of Nevada, dated not earlier than five (35) Business Days prior to the date hereof;
(v) the Restrictive Covenant Agreements, duly executed by the Surviving Entity;
(vi) the Stockholder Employment Agreements, duly executed by the Company;
(vii) the Employment Agreements, duly executed by the Company;
(viii) an amended and restated promissory note duly executed by the Company and payable to Kaunitz, reflecting the outstanding principle and accrued but unpaid interest under that certain loan in a principal amount of $400,000 by K▇▇▇▇▇▇ to the Company, dated as of the Closing issued by Date (the applicable agency “Kaunitz Note”), in its jurisdiction of formation;
(iv) The Transition Services Agreementthe form attached hereto as Exhibit F; and
(vix) Such other documents as the Seller may reasonably request to give effect to this Agreement or Escrow Agreement, duly executed by the Transaction DocumentsSurviving Entity.
Appears in 1 contract
Sources: Merger Agreement (Castellum, Inc.)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required by to the Exchange Agent, the number of Company Class A Ordinary Shares to be paid in respect of the SPAC Ordinary Shares and SPAC Rights in accordance with Section 3.4(h2.7(a), certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and for further distribution to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the BuyerSPAC Shareholders and Rightsholders;
(ii) The certificates required under a certificate signed by an authorized officer of the Company, dated as of the Closing Date, certifying that, to the knowledge and belief of such authorized officer, the conditions specified in Section 3.4(a6.3(a), (b), (c), (e), (f) and (ig) have been satisfied (the “Company Condition Certificate”);
(iii) As required under Section 3.4(g), a certificate of good standing for duly executed counterparts to each Subsidiary of a date within three (3) Business Days of the Closing Date issued Transaction Documents to be entered into by the applicable agency in its jurisdiction of organization Company and Merger Sub, the Shareholders, or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesKey Personnel;
(iv) Duly executed resignations, effective as copies of certified resolutions approved and actions taken by each of Company’s and M▇▇▇▇▇ Sub’s directors and shareholders in connection with the Closing, approval of each officer, director this Agreement and manager of each Subsidiary as provided in Section 3.4(f)the Transactions;
(v) The Transition Services Agreement;all other documents, instruments or certificates required to be delivered by the Company and Merger Sub at or prior to the Closing pursuant to Section 6.3; and
(vi) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer such other documents or certificates as shall be entitled to proceed with reasonably determined by the Closing SPAC and be entitled to withhold the amount required its legal counsel to be withheld pursuant required in order to Section 1445 of consummate the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsTransactions.
(b) At the Closing, the Buyer shall deliver, SPAC will deliver or cause to be delivered, to the Seller the following:
(i) The a certificate signed by an authorized officer of the SPAC, dated as of the Closing Purchase Price Date, certifying that, to the knowledge and belief of such authorized officer, the conditions specified in accordance with Section 2.3;
(ii) The certificates required to be delivered pursuant to Section 3.5(a6.2(a), (b), (c) and (de) have been satisfied (the “SPAC Condition Certificate”);
(ii) duly executed counterparts to each of the Transaction Documents to be entered into by the SPAC and the Sponsors, as applicable;
(iii) As provided the written resignation letters of all of the directors and officers of the SPAC, in accordance with the provisions of Section 3.5(e6.2(f)), a certificate of good standing for the Buyer effective as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formationEffective Time;
(iv) The Transition Services Agreementcopies of certified resolutions and actions taken by the SPAC Board and the SPAC Shareholders in connection with the approval of this Agreement and the Transactions;
(v) all other documents, instruments or certificates required to be delivered by the SPAC at or prior to the Closing pursuant to Section 6.2; and
(vvi) Such such other documents or certificates as shall be reasonably determined by the Seller may reasonably request Company and its legal counsel to give effect be required in order to this Agreement or consummate the Transaction DocumentsTransactions.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyerconditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.7 and Section 8.7), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for each Subsidiary of a date within three written evidence (3reasonably satisfactory to Acquiror) Business Days of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as termination of the date issued by the applicable agency and shall be provided Company Stockholders Agreement according to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogalesits terms;
(iv) Duly to Acquiror, the Registration Rights Agreement, duly executed resignations, effective as of by the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f)Company Stockholders party thereto;
(v) The Transition Services to Acquiror, the Lock-Up Agreement;, duly executed by the Company Stockholders representing eighty percent (80%) of the shares of Company Common Stock outstanding immediately prior to the Effective Time,
(vi) As provided in to Acquiror, if the Ardachon Proceedings shall not have been terminated prior to Closing, a letter agreement addressing the obligations set forth on Section 3.4(c), each 2.5(a)(vi) of the consents, approvals, and waivers that are listed on Schedule 4.3;Company Disclosure Letter; and
(vii) A duly executed to Acquiror, a certificate of non-foreign status on behalf of the SellerCompany, substantially prepared in a manner consistent and in accordance with the requirements of Treasury Regulation Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the sample certification set forth Internal Revenue Service prepared in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed accordance with the Closing and be entitled to withhold the amount required to be withheld pursuant to provisions of Treasury Regulations Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents1.897-2(h)(2).
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The to the Exchange Agent, the Aggregate Closing Purchase Price in accordance with Date Merger Consideration for further distribution to the Company Stockholders pursuant to Section 2.33.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement and each Lock-Up Agreement, duly executed by duly authorized Representatives of good standing for Acquiror and the Buyer as of a date within three (3) Business Days of Sponsor, and the Closing issued by the applicable agency in its jurisdiction of formationother parties thereto;
(iv) The Transition Services Agreementto the Company, the written resignations of all of the directors and officers of A▇▇▇▇▇▇▇ (other than those Persons identified as the initial directors and officers, respectively, of the Surviving Corporation after the Effective Time, in accordance with the provisions of Section 2.7 and Section 8.7), effective as of the Effective Time;
(v) to the Company, a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation to the Domestication; and
(vvi) Such other documents as to the Seller may reasonably request to give effect to this Agreement or the Transaction DocumentsCompany, an Internal Revenue Service Form W-9.
Appears in 1 contract
Closing Deliverables. (a) At ClosingOn or prior to the Closing Date, the Seller Company shall deliver, deliver or cause to be delivered, delivered to each Investor participating in the Buyer each of Closing the following:
(i) As required this Agreement executed by Section 3.4(h), certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the BuyerCompany;
(ii) The certificates required under evidence that the Registration Statement (as that term is defined in Section 3.4(a), (b), (e), and (i)3.01(a) has been cleared for comments by the Commission;
(iii) As required a copy of the request for acceleration to be filed by the Company with the Commission requesting acceleration of the effectiveness of the Registration Statement to a date no later than two business days following the Closing Date;
(iv) certificates or evidence of electronic transfer of the Securities purchased by the Investor, registered in the name of such Investor;
(v) the Share Escrow Agreement executed by the Company; and
(vi) a duly executed certificate of an officer of the Company appending thereto (A) copies of duly executed resolutions or consents, of the directors, members or manager, as applicable, approving and consenting to the Company’s execution, performance of its obligations under Section 3.4(g), the Transaction Documents and the transaction contemplated thereby and (B) a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of equivalent document dated no more than five days prior to the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignations, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documentshereof.
(b) At ClosingOn or prior to the Closing Date, each Investor participating in the Buyer Closing shall deliver, deliver or cause to be delivered, delivered to the Seller Company the following:
(i) The Closing Purchase Price in accordance with Section 2.3this Agreement executed by such Investor;
(ii) The certificates required to be delivered pursuant to Section 3.5(a), (b), and (d)the Share Escrow Agreement executed by such Investor;
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;such Investor’s Selling Stockholder Questionnaire set forth on Annex D hereto; and
(iv) The Transition Services Agreement; and
(v) Such other documents as such Investor’s Subscription Amount to the Seller may reasonably request to give effect to this Agreement or Escrow Account in accordance with the Transaction Documentswire instructions set forth on Annex C hereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Neonc Technologies Holdings, Inc.)
Closing Deliverables. (a) At the Closing, Inpixon or the Seller shall deliverCompany, as applicable, will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed Closing Date, certifying that, (A) the Internal Reorganization and the Distribution have been completed in blank or accompanied by powers duly executed in blank or other duly executed instruments accordance with the terms of transfer as required in order to validly transfer title in the Ancillary Agreements and (B) to the Stockknowledge and belief of such officer, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyerconditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled;
(ii) The certificates required under Section 3.4(a)to Acquiror, (b), (e), and (i);
(iii) As required under Section 3.4(g), a certificate the written resignations of good standing for each Subsidiary of a date within three (3) Business Days all of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as directors of the date issued by Company (other than any such Persons identified as initial directors of the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1Surviving Corporation, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignationsin accordance with Section 2.6), effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP ReleaseEffective Time; and
(xiiii) Such other documents as to Acquiror, a certificate on behalf of the Buyer may reasonably request Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulation Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to give effect to this Agreement or the Transaction DocumentsIRS prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with to the Exchange Agent, the Aggregate Merger Consideration for further distribution to the Company’s stockholders pursuant to Section 2.33.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d);Section 9.3(b) have been fulfilled; and
(iii) As provided to the Company, the written resignations of all of the directors and officers of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 3.5(e2.6 and Section 7.5), a certificate of good standing for the Buyer effective as of the Effective Time.
(c) On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, (i) all accrued Transaction Expenses of Acquiror and those incurred, accrued, paid or payable by Acquiror’s Affiliates on Acquiror’s behalf (which shall include any outstanding amounts under any Working Capital Loans) as set forth on a date within three written statement to be delivered to the Company not less than two (32) Business Days prior to the Closing Date and (ii) all accrued and unpaid Company Transaction Expenses (“Unpaid Transaction Expenses”) as set forth on the Closing Statement; provided, that any Unpaid Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Closing issued Company or any of the Company Subsidiaries shall be paid or cause to be paid by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as Acquiror to the Seller may reasonably request Company for further payment to give effect to this Agreement such employee, independent contractor, officer or director through the Transaction DocumentsCompany’s payroll.
Appears in 1 contract
Sources: Merger Agreement (Inpixon)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(c) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6(a)), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, the Registration Rights Agreement, duly executed by the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Investor;
(iv) to Acquiror, the Stockholders Agreement, duly executed by the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Investor;
(v) to Acquiror, a copy of the Restated Certificate duly adopted pursuant to the Written Consent and filed with the Delaware Secretary of State; and
(vi) to Acquiror, a certificate on behalf of good standing the Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulations Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that the Company is not, and was not during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code and the Treasury Regulations promulgated thereunder and no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the IRS prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).
(b) At the Closing, Acquiror will deliver or cause to be delivered:
(i) to the Exchange Agent, the portion of the Aggregate Merger Consideration to be paid in shares of Acquiror Common Stock for each Subsidiary further distribution to the Company’s equityholders pursuant to Section 3.2;
(ii) to the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a), Section 9.3(b) and Section 9.3(c) have been fulfilled;
(iii) to the Company, the Registration Rights Agreement, duly executed by duly authorized representatives of Acquiror and Sponsor;
(iv) to the Company, the Stockholders Agreement, duly executed by duly authorized representatives of Acquiror and Sponsor; and
(v) to the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6(b) and Section 7.6), effective as of the Effective Time.
(c) On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, (i) all Acquiror Transaction Expenses as set forth on a date within written statement to be delivered to the Company and Investor not less than three (3) Business Days of prior to the Closing Date issued by the applicable agency in its jurisdiction of organization or formationDate, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignations, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents.
(b) At Closing, the Buyer shall deliver, or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with Section 2.3;
(ii) The certificates required all Company Transaction Expenses as set forth on a written statement to be delivered pursuant to Section 3.5(a), (b), Acquiror and (d);
(iii) As provided in Section 3.5(e), a certificate Investor by or on behalf of good standing for the Buyer as of a date within Company not less than three (3) Business Days of prior to the Closing issued Date, and (iii) all Investor Transaction Expenses as set forth on a written statement to be delivered to Acquiror and the Company by or on behalf of Investor not less than three (3) Business Days prior to the applicable agency in its jurisdiction of formation;
Closing Date and (iv) The Transition Services Agreementoutstanding indebtedness of the Company and its Subsidiaries incurred under the Credit Facilities (including accrued but unpaid interest) to the extent such amount is greater than cash proceeds from the Debt Financing actually received by, or on behalf of, the Company or any of its Subsidiaries and, in any event, in an aggregate amount not to exceed the sum of (A) the amount of cash available in the Trust Account following the Acquiror Shareholders’ Meeting, after deducting the amount required to satisfy the Acquiror Share Redemption Amount, plus (B) the PIPE Investment Amount actually received by Acquiror prior to the Closing, plus (C) the Investor Investment Amount, minus (D) the sum of the amounts contemplated by clauses (i), (ii) and (iii) above, and as set forth on a written statement to be delivered to Acquiror and Investor by or on behalf of the Company not less than three (3) Business Days prior to the Closing Date, which shall include the respective amounts and wire transfer instructions for the payment thereof (if applicable), together with corresponding invoices for the foregoing; and
(v) Such other documents as provided that any Company Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Seller may reasonably request Company or any of its Subsidiaries shall be paid to give effect the Company for further payment to this Agreement such employee, independent contractor, officer or director through the Transaction DocumentsCompany’s payroll.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller Company shall deliver, deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(d) have been fulfilled;
(ii) The certificates required under Section 3.4(ato Acquiror, a certificate pursuant to Treasury Regulations Sections 1.1445-2(c) and 1.897-2(h), (b), (e), and (itogether with a form of notice to the IRS in accordance with the requirements of Treasury Regulations Section 1.897-2(h);
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for each Subsidiary of a date within three (3) Business Days the Company Lock-Up Agreements, signed by all officers and directors of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as Company and all Company Shareholders holding more than 1% of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;Company Common Stock; and
(iv) Duly executed resignations, effective as copies of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each other Ancillary Agreements duly executed by duly authorized representatives of the consents, approvals, Company and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsCompany related party thereto.
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The to the Company, a certificate signed by an officer of Acquiror, dated the Closing Purchase Price Date, certifying that, to the knowledge and belief of such officer, the conditions specified in accordance with Section 2.39.3(a), Section 9.3(b) and Section 9.3(c) have been fulfilled;
(ii) The certificates required to be delivered pursuant to Section 3.5(a)a copy of the Trust Termination Letter, (b), and (d)duly executed by a duly authorized representative of Acquiror;
(iii) As provided to the Company, the written resignations of all of the directors and officers of the Acquiror Entities (other than those Persons identified as the directors and officers, of Acquiror, in accordance with Section 3.5(e7.6 or as otherwise agreed between the parties), a certificate of good standing for the Buyer effective as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formationSecond Effective Time;
(iv) The Transition Services to the Company, the Sponsor Lock-Up Agreement, signed by the Sponsor; and
(v) Such the other documents as the Seller may reasonably request to give effect to this Agreement Ancillary Agreements duly executed by duly authorized representatives of Acquiror, Merger Sub or the Transaction DocumentsAcquiror Stockholders party thereto.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyer;conditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled;
(ii) The certificates required under Section 3.4(a)to Acquiror, (b), (e), and (i);
(iii) As required under Section 3.4(g), a certificate the written resignations of good standing for each Subsidiary of a date within three (3) Business Days all of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as directors of the date issued by Company (other than those Persons identified as the applicable agency initial directors and shall be provided to Buyer upon receipt. In officers, respectively, of the event Surviving Corporation, in accordance with the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignationsprovisions of Section 2.6 and Section 7.6), effective as of the ClosingFirst Effective Time;
(iii) to Acquiror, evidence that all Affiliate Agreements set forth on Section 6.4 of each officerthe Company Disclosure Letter have been terminated or settled at or prior to the Closing without further liability to Acquiror, director and manager the Company or any of each Subsidiary as provided in Section 3.4(f)the Company's Subsidiaries;
(iv) to Acquiror, evidence reasonably satisfactory to Acquiror that the Preferred Stock Conversion has been consummated;
(v) The Transition Services to the Acquiror, duly executed signatures pages of the Affiliates of the Company who are counterparties to the Registration Rights Agreement;
(vi) As provided to Acquiror, a certificate on behalf of the Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulation Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(c), each 897(c)(1)(A)(ii) of the consentsCode, approvalsa "U.S. real property interest" within the meaning of Section 897(c) of the Code, and waivers that are listed on Schedule 4.3;a form of notice to the Internal Revenue Service prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2); and
(vii) A duly executed certificate of non-foreign status of the Seller, substantially evidence reasonably satisfactory to Acquiror that any and all Executive Loans have been satisfied in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement full or the Transaction Documentsforgiven.
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with to the Exchange Agent, the Aggregate Merger Consideration for further distribution to the Company's stockholders pursuant to Section 2.3;3.2.
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d);Section 9.3(b) have been fulfilled;
(iii) As provided to the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other than those Persons identified as the initial directors and officers, respectively, of the Surviving Corporation, in accordance with the provisions of Section 3.5(e2.6 and Section 7.6), a certificate of good standing for the Buyer effective as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;Second Effective Time;
(iv) The Transition Services to the Company, a duly executed signature page to the Registration Rights Agreement; and
(v) Such other documents to the Company, a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation to the Domestication.
(c) On the Closing Date, concurrently with the Second Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, (i) all Acquiror Transaction Expenses as set forth on a written statement to be delivered to the Seller may reasonably request Company not less than two (2) Business Days prior to give effect the Closing Date and (ii) all accrued and unpaid Company Transaction Expenses ("Unpaid Transaction Expenses") as set forth on a written statement to this Agreement be delivered to Acquiror by or on behalf of the Company not less than two (2) Business Days prior to the Closing Date, which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided, that any Unpaid Transaction DocumentsExpenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company's payroll.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(c) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Registration Rights Agreement, shall be effective as of duly executed by all parties thereto other than Acquiror and the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesSponsor;
(iv) Duly executed resignationsto Acquiror, effective as evidence that all Affiliate Agreements (other than those set forth on Section 6.4 of the ClosingCompany Disclosure Letter) have been terminated or settled at or prior to the Closing without further liability to Acquiror, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f)the Company or its Subsidiary;
(v) The Transition Services to Acquiror, a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement;, the Ancillary Agreements to which the Company is a party and the transactions contemplated hereby and thereby; and
(vi) As provided to Acquiror, a certificate on behalf of the Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulation Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(c), each 897(c)(1)(A)(ii) of the consentsCode, approvalsa “U.S. real property interest” within the meaning of Section 897(c) of the Code, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the a form of notice to the sample certification set forth IRS prepared in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed accordance with the Closing and be entitled to withhold the amount required to be withheld pursuant to provisions of Treasury Regulations Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents1.897-2(h)(2).
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with to the Exchange Agent, the Aggregate Merger Consideration for further distribution to the Company’s equityholders pursuant to Section 2.33.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate of good standing for the Buyer as of a date within three (3) Business Days of Registration Rights Agreement, duly executed by ▇▇▇▇▇▇▇▇ and the Closing issued by the applicable agency in its jurisdiction of formationSponsor;
(iv) The Transition Services Agreementto the Company, the written resignations of all of the directors and officers of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Effective Time; and
(v) Such other documents to the Company, a certificate, dated as of the Seller may reasonably request Closing Date, signed by the Secretary of Acquiror attaching true, correct and complete copies of resolutions duly adopted by the Board of Directors of Acquiror authorizing this Agreement, the Ancillary Agreements to give effect to this Agreement or which Acquiror is a party and the transactions contemplated hereby and thereby and the Transaction DocumentsProposals.
(c) On the Closing Date, concurrently with the Effective Time, the parties shall pay or cause to be paid by wire transfer of immediately available funds, (i) all Acquiror Transaction Expenses as set forth on a written statement to be delivered to the Company not less than two (2) Business Days prior to the Closing Date and (ii) all Company Transaction Expenses as set forth on a written statement to be delivered to Acquiror by or on behalf of the Company not less than two (2) Business Days prior to the Closing Date, in each case of clauses (i) and (ii), which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing and, if reasonably required by the Trustee, the certified Taxpayer Identification Numbers, of each payee; provided, that any Company Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Company or its Subsidiary shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (Growth for Good Acquisition Corp)
Closing Deliverables. (a) At or prior to the Closing, the Seller Company shall deliver, or cause deliver the following to be delivered, to the Buyer each of the followingParent:
(i) As required by a certificate from the Chief Executive Officer of the Company, given on behalf of the Company and not in his individual capacity, dated the Closing Date stating that the conditions set forth in Section 3.4(h), certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in 8.2(a) and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the BuyerSection 8.2(b) have been satisfied;
(ii) The certificates required under Section 3.4(a)written resignations of the directors and managers, as applicable, of the Company as reasonably requested by Parent no later than ten (b), (e), and (i)10) days prior to the Closing;
(iii) As required under Section 3.4(g)a counterpart to the Escrow Agreement, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued duly executed by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesSecurityholder Representative;
(iv) Duly counterparts to the Registration Rights Agreement, duly executed resignations, effective as by each of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);Company Equity Holders required to be parties thereto; and
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c)a duly executed certificate, each dated as of the consentsClosing Date, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate satisfying the requirements of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Regulations Section 1.1445-2(b)(2)(iv)(B) (2(c)(3), certifying that no interest in the Company is a “FIRPTA Certificate”United States real property interest” (as defined in Section 897(c)(1) of the Code); provided, that if and a notice of such certification to the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed IRS in accordance with the Closing and be entitled to withhold the amount required to be withheld pursuant to provisions of Treasury Regulations Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents1.897-2(h)(2).
(b) At or prior to the Closing, the Buyer shall deliver, or cause to be delivered, to the Seller the followingParent shall:
(i) The deliver to the Company a certificate from the Chief Executive Officer of Parent, given on behalf of the Parent and not in his individual capacity, dated the Closing Purchase Price Date stating that the conditions set forth in accordance with Section 2.3Sections 8.1(a) and 8.1(b) have been satisfied;
(ii) The certificates required deliver to be delivered pursuant the Company and the Securityholder Representative a counterpart to Section 3.5(a)the Escrow Agreement, (b), duly executed by Parent and (d);the Escrow Agent; and
(iii) As provided in Section 3.5(e)deliver to the Company and the Securityholder Representative a counterpart to the Registration Rights Agreement, a certificate of good standing for the Buyer as of a date within three (3) Business Days of the Closing issued duly executed by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction DocumentsParent.
Appears in 1 contract
Sources: Merger Agreement (Skillsoft Corp.)
Closing Deliverables. (a) At the Closing, the Seller Company shall deliver, deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(c) have been fulfilled;
(ii) The certificates required under to Acquiror, the Registration Rights Agreement, duly executed by Color Up and HS3;
(iii) to each of Color Up and HS3, a counterpart to the A&R OP LPA, duly executed by the Company; and
(iv) to Acquiror, a duly executed and completed IRS Form W-9 from the Company and each holder of MIC Common Stock Warrants that are outstanding and unexpired as of the Closing provided, however, that the sole remedy of Acquiror for the failure to provide any such IRS Forms W-9 shall be to withhold Taxes from the consideration otherwise payable pursuant to this Agreement in accordance with Section 3.4(a3.5.
(b) At the Closing, Acquiror will deliver or cause to be delivered:
(i) to the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a), Section 9.3(b) and Section 9.3(d) have been fulfilled;
(b)ii) to the Company, the Registration Rights Agreement, duly executed by duly authorized representatives of Acquiror, the Sponsor and the Holders (e), and (ias defined in the Sponsor Agreement);
(iii) As required under Section 3.4(g), a certificate of good standing for each Subsidiary of a date within three (3) Business Days copy of the Closing Date issued Trust Termination Letter, duly executed by the applicable agency in its jurisdiction a duly authorized representative of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;Acquiror; and
(iv) Duly executed resignationsto the Company, the written resignations of all of the directors and officers of the Acquiror Entities (other than those Persons identified as the directors and officers, of Acquiror after the Domestication, in accordance with Section 7.6 or as otherwise agreed between the parties), effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsEffective Time.
(b) At Closing, the Buyer shall deliver, or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with Section 2.3;
(ii) The certificates required to be delivered pursuant to Section 3.5(a), (b), and (d);
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction Documents.
Appears in 1 contract
Sources: Merger Agreement (Fifth Wall Acquisition Corp. III)
Closing Deliverables. (a) At ClosingOn or prior to the Closing Date, the Seller Company shall deliver, deliver or cause to be delivered, delivered to the Buyer each of Company the following:
(i) As required this Agreement executed by Section 3.4(h), certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the BuyerCompany;
(ii) The certificates required under Section 3.4(a)the Note, (b)registered in the name of the Investor, (e), and (i)with an original principal amount equal to $1,437,500;
(iii) As required under Section 3.4(g)the Warrant, a certificate of good standing for each Subsidiary of a date within three (3) Business Days registered in the name of the Closing Date issued by Investor, for the applicable agency in its jurisdiction purchase of organization or formation, except for Nogales, which certificate such Investor’s Warrant Coverage Number of good standing issued by the applicable agency shall be applied for upon execution shares of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesCommon Stock;
(iv) Duly the duly executed resignations, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f)▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
(v) The Transition Services the duly executed Security Agreement;
(vi) As provided evidence satisfactory to the Investor of the repayment in Section 3.4(cfull and satisfaction of all of the Company’s obligations owing under that certain Note dated as of June 18, 2020 in the principal amount of $150,000 (SBA Loan # 8501337908) (the “SBA Note”) issued by the Company to the U.S. Small Business Administration (the “SBA”) in consideration for the advance of by the SBA of a loan to the Company in the amount of $150,000 (the “SBA Loan”), each and the release of any security interest in the assets of the consentsCompany granted to the SBA in connection with the SBA Loan; provided without limiting the foregoing, approvalsthat upon delivery of the foregoing evidence with respect to the repayment of the SBA Loan, and waivers that are listed on Schedule 4.3the Investor shall be permitted make any filings necessary to terminate any UCC financing statements filed in connection with the SBA Loan;
(vii) A a duly executed certificate copy of non-foreign status a letter agreement in form and substance satisfactory to the Investor by and among ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Investor, pursuant to which the parties thereto agree to the subordination of (A) the Company’s outstanding obligations under, and all security interests and liens on the assets of the SellerCompany and its Subsidiaries granted in connection with, substantially that certain Second Amended and Restated 15% Senior Secured Convertible Promissory Note of the Company dated April 1, 2021 in the form original principal amount of $1,990,000, issued by the Company to ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the “Gene and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Note”) to (B) the Company’s obligations under the Note to the Investor and all security interests and liens on the assets of the sample certification set forth Company and its Subsidiaries granted in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed connection with the Closing Note and be entitled to withhold other Transaction Documents, together with evidence that any UCC financing statements filed in connection with the amount required to be withheld pursuant to Section 1445 of security interest securing the Code from any payment made hereunderGene and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Note have been terminated;
(viii) A a duly executed IRS Form W-9 copy of a payoff letter in a form and substance reasonably acceptable satisfactory to the BuyerInvestor made by Marital Trust GST Subject U/W/O ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇ Trust”), evidencing (A) the payment in full and satisfaction of all of the Company’s obligations owing under that certain Second Amended and Restated 15% Senior Secured Convertible Promissory Note of the Company dated April 1, 2021 in the original principal amount of $460,000, issued by the Company to Marital Trust GST Subject U/W/O ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the “▇▇▇▇▇▇▇ Trust Note”), and (B) the release of any other Tax forms as may be reasonably requested by security interest in the Buyerassets of the Company and its subsidiaries granted to ▇▇▇▇▇▇▇ Trust in connection with ▇▇▇▇▇▇▇ Trust Note, together with evidence that any UCC financing statements filed in connection with the security interest securing the ▇▇▇▇▇▇▇ Trust Note have been terminated;
(ix) All certificates evidencing a duly executed copy of a voting agreement in form and substance satisfactory to the capital stockInvestor by ▇▇▇▇ ▇▇▇▇▇▇▇, quotas ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Trust and other equity interests of each any affiliates thereof (collectively, the “▇▇▇▇▇▇▇ Parties”) for the benefit of the Subsidiaries;Investor (the “▇▇▇▇▇▇▇ Voting Agreement”), pursuant to which ▇▇▇▇▇▇▇ Voting Agreement the ▇▇▇▇▇▇▇ Parties shall agree to vote any and all shares of Common Stock or other capital stock of the Company owned, directly or indirectly by such ▇▇▇▇▇▇▇ Parties in favor of any proposal to issue a number of Conversion Shares to the Investor that would require approval of the Company’s stockholders in order for such issuance to be in compliance with Nasdaq Rule 5635(a)(1) and/or 5635(d), or any other applicable rules and regulations of the principal Trading Market; and
(x) The IP Releasean officer’s certificate of the Company certifying the Company’s: (A) certified charter (or similar formation document); and
(xiB) Such other documents as good standing certificate in its state of incorporation (or formation); (C) bylaws (or similar governing document); (D) resolutions of the Buyer may reasonably request to give effect to this Agreement Board of directors (or similar governing body) approving and authorizing the execution, delivery and performance of the Transaction DocumentsDocuments and the transactions contemplated thereby.
(b) At ClosingOn or prior to the Closing Date, the Buyer Investor shall deliver, deliver or cause to be delivered, delivered to the Seller Company the following:
(i) The Closing Purchase Price in accordance with Section 2.3this Agreement executed by the Investor;
(ii) The certificates required such Investor’s Subscription Amount by wire transfer to be delivered the Company pursuant to the wiring instructions set forth in Section 2.03(c), less any deduction for legal expense reimbursement to Investor permitted pursuant to Section 3.5(a), (b), and (d);5.02; and
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer duly completed and signed Confidential Investor Questionnaire along with such other duly completed and signed questionnaires as of a date within three (3) Business Days of the Closing issued may be requested by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction DocumentsCompany.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mobiquity Technologies, Inc.)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyerconditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued Registration Rights Agreement, duly executed by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by Major Company Stockholders who have elected to execute the applicable agency shall be applied for upon execution of this Registration Rights Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;; and
(iv) Duly executed resignationsto Acquiror, effective as a certificate on behalf of the ClosingCompany, prepared in a manner consistent and in accordance with the requirements of each officerTreasury Regulation Sections 1.897-2(g), director (h) and manager of each Subsidiary as provided 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(f);
(v897(c)(1)(A)(ii) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consentsCode, approvalsa “U.S. real property interest” within the meaning of Section 897(c) of the Code, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the a form of notice to the sample certification set forth Internal Revenue Service prepared in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed accordance with the Closing and be entitled to withhold the amount required to be withheld pursuant to provisions of Treasury Regulations Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents1.897-2(h)(2).
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with to the Exchange Agent, the Aggregate Merger Consideration for further distribution to the Company’s stockholders pursuant to Section 2.33.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement, duly executed by duly authorized representatives of good standing for Acquiror and the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;Sponsor; and
(iv) The Transition Services Agreement; andto the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Effective Time.
(vc) Such other documents On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, (i) all accrued transaction expenses of Acquiror and those incurred, accrued, paid or payable by Acquiror’s Affiliates on Acquiror’s behalf (which shall include any outstanding amounts under any Working Capital Loans) as set forth on a written statement to be delivered to the Seller may reasonably request Company not less than two (2) Business Days prior to give effect the Closing Date and (ii) all accrued and unpaid Transaction Expenses (“Unpaid Transaction Expenses”) as set forth on a written statement to this Agreement be delivered to Acquiror by or on behalf of the Company not less than two (2) Business Days prior to the Closing Date, which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided, that any Unpaid Transaction DocumentsExpenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (Social Capital Hedosophia Holdings Corp. II)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required by Section 3.4(h)to Acquiror, certificates evidencing the Stock duly endorsed in blank or accompanied by powers a certificate duly executed in blank or other duly executed instruments by an authorized officer of transfer the Company, dated as required in order to validly transfer title in and to of the StockClosing Date, andcertifying that, to the extent knowledge and belief of such authorized officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(c) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued Registration Rights Agreement, duly executed by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by Company Stockholders who have elected to execute the applicable agency shall be applied for upon execution of this Registration Rights Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignationsto Acquiror, effective as a certificate on behalf of the ClosingCompany and in form and substance reasonably satisfactory to Acquiror, prepared in a manner consistent and in accordance with the requirements of each officerTreasury Regulations Sections 1.897-2(g), director (h) and manager of each Subsidiary as provided 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(f897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the Internal Revenue Service prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2) (which shall be delivered by Acquiror to the Internal Revenue Service after the Closing);, together with written authorization for Acquiror to deliver such documentation to the Internal Revenue Service on behalf of the Company after the Closing; and
(v) The Transition Services Agreement;
to Acquiror, (vi1) As provided in for each Company Stockholder that is a “United States person” within the meaning of Section 3.4(c), each 7701(a)(30) of the consentsCode, approvals, a properly completed and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in certifying that such Company Stockholder is not subject to backup withholding, or (2) for each Company Stockholder that is not a form “United States person,” a properly completed and substance reasonably acceptable duly executed applicable IRS Form W-8 of such Company Stockholder; provided, however, that if any Company Stockholder fails to provided such certificate, the Buyer, transactions contemplated by this Agreement shall nonetheless be able to close and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of Acquiror, Merger Sub, the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents Company, the Exchange Agent and their respective agents, as the Buyer may reasonably request applicable, shall be entitled to give effect withhold from any consideration paid pursuant to this Agreement or the Transaction Documentsany amounts required by Law in accordance with Section 3.6.
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price to the Exchange Agent, that portion of the Base Merger Consideration to be paid in respect of shares of Company Common Stock in accordance with Section 2.33.2 (as set forth on the Allocation Schedule), for further distribution to such holders pursuant to Section 3.4;
(ii) The certificates required to be delivered pursuant the Company, a certificate duly executed by an authorized officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such authorized officer, the conditions specified in Section 3.5(a9.3(a), (b), Section 9.3(b) and (d)Section 9.3(c) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement, duly executed by duly authorized representatives of good standing for Acquiror, Burkhan (and/or its Affiliates and/or nominees) and the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formationSponsor;
(iv) The Transition Services to the Sponsor and Burkhan (and/or its Affiliates and/or nominees), the Stockholders’ Agreement, duly executed by Acquiror; and
(v) Such to the Company, ▇▇▇▇ executed written resignations of all of the directors and officers of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub (other documents than those Persons identified as the Seller may reasonably request initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 8.2(e)), effective as of the Effective Time.
(c) On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to give effect be paid by wire transfer of immediately available funds, the Acquiror Transaction Expenses (other than any Excise Tax that is not due and payable at such time) and the Company Transaction Expenses, in accordance with Section 11.6, which amounts incurred, accrued, paid or payable by (i) Acquiror or Acquiror’s Affiliates (which shall include any outstanding amounts under any Working Capital Loans) shall be set forth on a written statement delivered to this Agreement the Company not less than two (2) Business Days prior to the Closing Date and (ii) the Company or its Subsidiaries shall be set forth on a written statement delivered to Acquiror not less than two (2) Business Days prior to the Closing Date, which statements described in the foregoing clauses (i) and (ii) shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided, that any Company Transaction DocumentsExpenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll or accounts payable, as applicable.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, delivered to the Buyer each of Acquiror the following:
(i) As required by Section 3.4(hfrom each Legacy Shareholder and such Company Shareholder’s as own in the aggregate at least 85% of the Company Shares (and their respective Affiliates, as applicable), certificates evidencing the Stock duly endorsed in blank or accompanied by powers a duly executed in blank (A) Registration Rights Agreement, (B) Lock-Up Agreement, and (C) a W-8 or other duly executed instruments of transfer W-9 as required in order to validly transfer title in and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyerapplicable;
(ii) The certificates required under Section 3.4(a)from the Shareholder Representative, (b), (e), and (i)the duly executed Escrow Agreement;
(iii) As required under Section 3.4(g)from each Key Executive, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this duly executed Restrictive Covenant Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignations, effective as from each director and/or officer of the ClosingCompany, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);a duly executed Lock-Up Agreement; and
(v) The Transition Services Agreement;
(vi) As provided a certificate signed by an officer of the Company, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.4(c11.2(a), each of the consents, approvals, Section 11.2(b) and waivers that are listed on Schedule 4.3;
(viiSection 11.2(c) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documentshave been fulfilled.
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, delivered to the Seller Company the following:
(i) The Closing Purchase Price in accordance with At the Closing, Acquiror will deliver or cause to be delivered to the Exchange Agent the Aggregate Exchange Consideration for further distribution to the Company Shareholders, pursuant to Section 2.3;4.2.
(ii) The certificates required to be delivered pursuant to Section 3.5(a)from each director and/or officer of Acquiror, (b), a written resignation in a form mutually agreed by A▇▇▇▇▇▇▇ and (d)the Company effective as of the Effective Time;
(iii) As provided a resolution of Acquiror appointing two (2) persons to serve as Co-Chairmen of the board of directors, both being nominated by the Company, as of immediately prior to the Effective Time, one (1) person to serve as director who was a director or representative of Acquiror continuing in office from prior to the Effective Time, and four (4) persons who constitute independent directors within the meaning of Rule 5605(a)(2) of the Nasdaq Stock Market LLC (“Nasdaq”), out of which three (3) persons shall be nominated by the Company and one (1) person shall be nominated by Acquiror and such nominees shall be mutually acceptable to Acquiror and the Company as the directors of Acquiror, effective as of the Effective Time;
(iv) from each of Acquiror and Sponsor, a duly executed Registration Rights Agreement;
(v) from the promoter of the IPO, a duly executed Lock-Up Agreement;
(vi) a duly executed Escrow Agreement; and
(vii) a certificate signed by an officer of Acquiror, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(e)11.3(a) and Section 11.3(b) have been fulfilled;
(c) At the Closing, Acquiror will deliver or cause to be delivered to the Exchange Agent the Aggregate Exchange Consideration for further distribution to the Company Shareholders, pursuant to Section 4.2.
(d) At the Closing Date, substantially concurrently with the Closing, the Company shall pay or cause to be paid by wire transfer of immediately available funds (i) all accrued and unpaid Company Transaction Expenses; and (ii) all accrued and unpaid Acquiror Transaction Expenses, as set forth on a certificate of good standing for written statement to be delivered to the Buyer as of a date within Company by Acquiror not less than three (3) Business Days of prior to the Closing issued by Date, which shall include the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as respective amounts and wire transfer instructions for the Seller may reasonably request to give effect to this Agreement or the Transaction Documentspayment thereof.
Appears in 1 contract
Sources: Business Combination Agreement (DUET Acquisition Corp.)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(d) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required to Acquiror, the Registration Rights Agreement, duly executed by the Requisite Company Equityholders (to the extent any shares of Delaware Acquiror Common Stock held such Persons are subject to any resale limitations under Section 3.4(gRule 144 under the Securities Act (or any successor rule then in effect), a certificate including volume or other restrictions or limitations as to manner or timing of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogalessale);
(iv) Duly to Acquiror, each Lock-Up Agreement, duly executed resignationsby a Company Director or Officer or a Major Company Equityholder, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f)applicable;
(v) The Transition Services Agreement;to Acquiror, a copy of the Restated Certificate duly adopted pursuant to the Written Consent and filed with the Delaware Secretary of State; and
(vi) As provided to Acquiror, a certificate on behalf of the Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulation Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(c), each 897(c)(1)(A)(ii) of the consentsCode, approvalsa “United States real property interest” within the meaning of Section 897(c) of the Code, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the a form of notice to the sample certification set forth IRS prepared in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed accordance with the Closing and be entitled to withhold the amount required to be withheld pursuant to provisions of Treasury Regulations Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents1.897-2(h)(2).
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with to the Exchange Agent, the Aggregate Merger Consideration for further distribution to the Company’s equityholders pursuant to Section 2.33.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement, duly executed by duly authorized representatives of good standing for Acquiror, Sponsor and the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formationPIPE Investors;
(iv) The Transition Services Agreementto the Company, the Lock-Up Agreements, duly executed by a duly authorized representative of Acquiror; and
(v) Such to the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other documents than those Persons identified as the Seller may reasonably request initial directors of the Surviving Corporation, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Effective Time.
(c) On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to give effect be paid by wire transfer of immediately available funds, without duplication, (i) the following accrued and unpaid fees and expenses of Acquiror and its Affiliates (to this Agreement the extent then owed by Acquiror): (v) all fees, costs, expenses, brokerage fees, commissions, finders’ fees and disbursements of Acquiror’s financial advisors, investment banks, data room administrators, attorneys, accountants and other advisors and service providers, in each case in connection with the negotiation, documentation and consummation of the transactions contemplated hereby , (w) all the filing fees incurred in connection with making any filings under Section 8.1, (x) all fees and expenses incurred in connection with preparing and filing the Registration Statement, the Proxy Statement or the Proxy Statement/Registration Statement under Section 8.2 and obtaining approval of the NYSE or Nasdaq (as applicable) under Section 7.3, (y) repayment of any Working Capital Loans and (z) any deferred underwriting commissions and other fees relating to Acquiror’s initial public offering that are not paid out of the Trust Account (“Acquiror Transaction DocumentsExpenses”) as set forth on a written statement to be delivered to the Company not less than two (2) Business Days prior to the Closing Date and (ii) all accrued and unpaid Transaction Expenses (“Unpaid Transaction Expenses”) as set forth on a written statement to be delivered to Acquiror by or on behalf of the Company not less than two (2) Business Days prior to the Closing Date, which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided, that any Unpaid Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Acquiror will deliver or cause to be delivered, delivered to the Buyer each of the followingCompany:
(i) As required the written resignations of all of the directors and officers of Acquiror other than one incumbent director of the Acquiror to be selected by Section 3.4(h)the Acquiror, certificates evidencing effective as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the BuyerEffective Time;
(ii) The certificates required under Section 3.4(a)a resolution of Acquiror appointing the Chairman and the Chief Executive Officer of the Company as of immediately prior to the Effective Time and four persons who constitute independent directors” within the meaning of Rule 5605(a)(2) of the Nasdaq Stock Market LLC (“Nasdaq”) and who are mutually acceptable to Acquiror and the Company as the directors of Acquiror, (b), (e), and (i);effective as of the Effective Time; and
(iii) As required under Section 3.4(g), a certificate signed by an officer of good standing Acquiror, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 11.3(a) and Section 11.3(b) have been fulfilled.
(b) At the Closing, Acquiror will deliver or cause to be delivered to the Exchange Agent the Aggregate Exchange Consideration for each Subsidiary further distribution to the Company Shareholders, pursuant to Section 4.2.
(c) At the Closing Date, substantially concurrently with the Closing, the Company shall pay or cause to be paid by wire transfer of immediately available funds (i) all accrued and unpaid Company Transaction Expenses; and (ii) all accrued and unpaid Acquiror Transaction Expenses, as set forth on a date within written statement to be delivered to the Company by Acquiror not less than three (3) Business Days of prior to the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for NogalesDate, which certificate of good standing issued by shall include the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency respective amounts and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignations, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents.
(b) At Closing, the Buyer shall deliver, or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with Section 2.3;
(ii) The certificates required to be delivered pursuant to Section 3.5(a), (b), and (d);
(iii) As provided in Section 3.5(e), a certificate of good standing wire transfer instructions for the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction Documentspayment thereof.
Appears in 1 contract
Sources: Business Combination Agreement (Fat Projects Acquisition Corp)
Closing Deliverables. (a) At or prior to the Closing, the Seller Company shall deliver, or cause deliver to be delivered, to the Buyer each of the following:
(i) As required by Section 3.4(h), certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyer;
(ii) The certificates required under Section 3.4(a), (b), (e), and (i);
(iii) As required under Section 3.4(g), a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignations, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents.
(b) At Closing, the Buyer shall deliver, or cause to be delivered, to the Seller Holdings the following:
(i) The Closing Purchase Price in accordance with Section 2.3Promissory Note duly executed by the Stockholders and Stockholder Representative (as holders thereunder);
(ii) The certificates required to be delivered resignations of the directors of the Company pursuant to Section 3.5(a), (b), and (d)5.6;
(iii) As provided a certificate, dated the Closing Date and signed by a duly authorized officer of the Company, that each of the conditions set forth in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (37.2(a) Business Days of the Closing issued by the applicable agency in its jurisdiction of formationand Section 7.2(b) have been satisfied;
(iv) The Transition Services a certificate of the Secretary (or equivalent officer) of the Company certifying that (a) attached thereto are true and complete copies of (1) all resolutions adopted by the Company Board authorizing the execution, delivery and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby and (2) resolutions of the Stockholders approving the Merger and adopting this Agreement, and (b) all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby;
(v) a certificate of the Secretary (or equivalent officer) of the Company certifying the names and signatures of the officers of the Company authorized to sign this Agreement, the Ancillary Documents and the other documents to be delivered hereunder and thereunder;
(vi) a good standing certificate (or its equivalent) from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which the Company is organized;
(vii) the Consideration Spreadsheet contemplated in Section 2.17;
(viii) the FIRPTA Statement;
(ix) the Contribution Agreement, duly executed by each Stockholder;
(x) duly executed employment agreements in form and substance reasonably acceptable to Holdings, by and between the Company and each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Executive Officer, ▇▇▇▇ ▇▇▇▇▇▇▇, Executive Director of Worldlink Medical, ▇▇▇▇ ▇▇▇▇▇, Vice President of Information Technology, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President of Human Resources, ▇▇▇▇ ▇’▇▇▇▇▇▇, Vice President of Pharmacy and Compliance, ▇▇▇ ▇▇▇▇▇, Vice President of Accounting and Finance, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Pharmacy Compounding Manager, ▇▇▇▇▇▇ ▇▇▇▇▇▇, Patient Care Manager, ▇▇▇ ▇▇▇▇▇▇▇▇▇, Pharmacy Fulfillment Manager, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Licensing Pharmacist, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Operations Manager of Medical Horizons, ▇▇▇▇▇ ▇▇▇▇▇▇, Graphic Designer (Brand/Marketing Coordinator), ▇▇▇▇ ▇▇▇▇▇▇▇▇, Senior Accounts Manager, ▇▇▇▇▇ ▇▇▇▇▇▇▇, IT Program Manager, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, HR Business Partner, and ▇▇▇▇▇▇▇ ▇▇▇▇▇, MTS Manager, to be effective as of the Closing Date; and
(xi) such other documents or instruments as Holdings reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.
(b) At the Closing, Holdings shall deliver to the Company (or such other Person as may be specified herein) the following:
(i) the Promissory Note duly executed by Holdings, including the pledge of the capital stock of the Surviving Corporation, as contemplated therein;
(ii) stock certificates representing the portion of Rollover Equity allocated to each Stockholder pursuant to such Stockholder’s Pro Rata Share;
(iii) a certificate, dated the Closing Date and signed by a duly authorized officer of Holdings, that each of the conditions set forth in Section 7.3(a) and Section 7.3(b) have been satisfied;
(iv) a certificate of the Secretary (or equivalent officer) of Holdings and Merger Sub certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Holdings and Merger Sub authorizing the execution, delivery and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby;
(v) Such a certificate of the Secretary (or equivalent officer) of Holdings and Merger Sub certifying the names and signatures of the officers of Holdings and Merger Sub authorized to sign this Agreement, the Ancillary Documents and the other documents to be delivered hereunder and thereunder;
(vi) the Contribution Agreement, duly executed by Holdings;
(vii) evidence reasonably satisfactory to Holdings that the Company has notified PPP Lender in writing of the transactions contemplated in this Agreement, has provided PPP Lender with a copy of this Agreement, and that PPP Lender has consented to and approved the same;
(viii) evidence reasonably satisfactory to Holdings that the Company has deposited $1,174,000 by wire transfer of immediately available funds, into an interest-bearing escrow account controlled by PPP Lender (the “PPP Escrow Agent”), pursuant to an escrow agreement reasonably acceptable to Holdings (the “PPP Escrow Agreement”), which PPP Escrow Agreement shall provide, in part, that after the forgiveness process is completed, the escrow funds must be disbursed first to repay any remaining PPP Loan balance plus interest;
(ix) evidence reasonably satisfactory to Holdings that PPP Lender has approved the Company’s loan forgiveness application in respect of the Company’s PPP Loan and has submitted the same to the U.S. Small Business Administration; and
(x) such other documents or instruments as the Seller may Company reasonably request requests and are reasonably necessary to give effect to consummate the transactions contemplated by this Agreement or the Transaction DocumentsAgreement.
Appears in 1 contract
Sources: Merger Agreement (GigCapital2, Inc.)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, delivered to the Buyer each of the followingSPAC:
(i) As required a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed Closing Date, certifying that the conditions specified in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in Section 8.2(a) and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the BuyerSection 8.2(b) have been fulfilled;
(ii) The certificates required under evidence in form and substance reasonably acceptable to SPAC of the termination of (A) the ▇▇▇ (other than Section 3.4(a2.11 thereof (Market Stand-off Agreement) and, in connection therewith, Section 7 thereof (Miscellaneous), (bwhich shall remain in full force and effect with respect to any party to the ▇▇▇ which does not enter into the Lock-Up Agreement), (e)the ROFO Agreement, the Voting Agreement and (iexcept as set forth in Section 2.10(a)(ii) of the Company Disclosure Letter) all letter agreements between the Company and any of its investors (the “Side Letters”);
(iii) As required under Section 3.4(g), a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesPayment Spreadsheet;
(iv) Duly duly executed resignationscounterparts of each of the Ancillary Agreements contemplated to be executed at the Closing by the Company or any of its Subsidiaries; and
(v) a duly executed counterpart, executed by the Key Individual, of the Key Individual Subscription Agreement.
(b) At the Closing, SPAC will deliver or cause to be delivered to the Company:
(i) a certificate signed by an officer of SPAC, dated as of the Closing Date, certifying that the conditions specified in Section 8.3(a) and Section 8.3(b) have been fulfilled;
(ii) copies of the written resignations of all the directors and officers of SPAC and its Subsidiaries (including, for the avoidance of doubt, CallCo and ExchangeCo), effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);; and
(viii) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests counterparts of each of the Subsidiaries;
Ancillary Agreements contemplated to be executed at the Closing by Sponsor, SPAC or any of SPAC’s Subsidiaries (x) The IP Release; and
(xi) Such other documents as including, for the Buyer may reasonably request to give effect to this Agreement or the Transaction Documentsavoidance of doubt, CallCo and ExchangeCo).
(bc) At ClosingOn the Closing Date, the Buyer SPAC shall deliver, pay or cause to be delivered, to the Seller the following:
paid by wire transfer of immediately available funds all accrued and unpaid (i) The Closing Purchase Price Company Transaction Expenses as set forth in accordance with Section 2.3;
the Company Transaction Expenses and Cash Certificate pursuant to Section 2.8(a), which shall include the respective amounts and wire transfer instructions for the payment thereof, and (ii) The certificates required to be delivered SPAC Transaction Expenses as set forth in the SPAC Financing Certificate pursuant to Section 3.5(aSection 2.8(b), (b), and .
(d);
(iii) As provided At the Closing, SPAC shall repay in Section 3.5(e)full the aggregate outstanding amount due under the Expense Advancement Agreement, a certificate the Promissory Note and all Working Capital Loans to the payee designated by Sponsor by wire transfer of good standing for immediately available funds to the Buyer as of a date within three (3) Business Days of the Closing issued account designated by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction DocumentsSponsor.
Appears in 1 contract
Sources: Business Combination Agreement (CF Acquisition Corp. VI)
Closing Deliverables. (a) At the Closing, the Seller Company shall deliver, deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(c) have been fulfilled;
(ii) The certificates required under Section 3.4(ato Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of Merger Sub II, in accordance with Section 2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued Registration Rights Agreement, duly executed by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesCompany Stockholder;
(iv) Duly to Acquiror, the Stockholders’ Agreement, duly executed resignations, effective as of by the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);Company Stockholder; and
(v) The Transition Services Agreement;
to Acquiror, a certificate on behalf of the Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulation Sections 1.897-2(g) and (vih) As provided and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(c), each 897(c)(1)(A)(ii) of the consentsCode, approvalsa “U.S. real property interest” within the meaning of Section 897(c) of the Code, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the a form of notice to the sample certification set forth Internal Revenue Service prepared in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed accordance with the Closing and be entitled to withhold the amount required to be withheld pursuant to provisions of Treasury Regulations Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents1.897-2(h)(2).
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with Section 2.3[Intentionally Omitted];
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to Section 3.5(athe knowledge and belief of such officer, the conditions specified in Section 9.3(a), (b), Section 9.3(b) and (d)Section 9.3(c) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement, duly executed by duly authorized representatives of good standing for Acquiror and the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;Sponsor; and
(iv) The Transition Services Agreement; andto the Company, the written resignations of all of the directors and officers of Acquiror, Merger Sub I and Merger Sub II (other than those Persons identified as the directors and officers, of Acquiror after the Domestication, in accordance with Section 2.6, Section 7.6, and as otherwise agreed between the parties), effective as of the Effective Time.
(vc) Such other documents as On the Seller may reasonably request Closing Date, substantially concurrent with the Company Merger I Effective Time but prior to give effect payment of the Aggregate Merger Consideration, Acquiror shall pay or reimburse or cause to this Agreement be paid or reimbursed by wire transfer of immediately available funds, in the following order (i) the Payoff Amount, (ii) all accrued and unpaid Acquiror Transaction DocumentsExpenses and (iii) all accrued and unpaid Company Transaction Expenses.
Appears in 1 contract
Sources: Merger Agreement (Empower Ltd.)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will have delivered or cause caused to be delivered, delivered to the Buyer each MBS and WCare all of the followingfollowing in form and substance satisfactory to MBS and WCare:
(i) As required by Section 3.4(h)a certificate of the secretary of the Company, certificates evidencing certifying (A) that a true, correct and complete copy of the Stock duly endorsed in blank articles of organization of the Company is attached, and (B) that a true, correct and complete copy of the operating agreement (or accompanied by powers duly executed in blank or other duly executed instruments similar document) of transfer as required in order to validly transfer title in and to the Stock, and, to the extent the Stock Company is not certificated, other customary evidence of ownership satisfactory to the Buyerattached;
(ii) The certificates required under Section 3.4(a)copies of the resolutions unanimously and duly adopted by the Company's managers, (b)authorizing the execution, (e)delivery and performance by the Company of this Agreement, and (i)the consummation of all of the other transactions hereunder and thereunder, certified as of the Closing Date by the secretary of the Company;
(iii) As required under a certificate dated as of the Closing Date from an officer or manager of the Company and from each Member stating that the conditions specified in Section 3.4(g)5.2 have been fully satisfied or waived by the Company and Member, as applicable; and
(iv) a certificate of good standing for each Subsidiary and existence form the Secretary of State of the State of Nevada, of a date within three (3) Business Days of recent date, with respect to the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignations, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);Company.
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each the resignations of all officers and managers of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsCompany.
(b) At the Closing, the Buyer shall deliver, MBS and WCare will have delivered or cause caused to be delivered, delivered to the Seller Company of the followingfollowing in form and substance satisfactory to the Company:
(i) The copies of the resolutions unanimously and duly adopted by the board of directors of MBS and the managers of WCare, respectively, authorizing the execution, delivery and performance by MBS and WCare of this Agreement, and the consummation of all of the other transactions hereunder and thereunder, certified as of the Closing Purchase Price in accordance with Section 2.3Date by the secretary of MBS and WCare, as applicable;
(ii) The certificates required to be delivered pursuant to a certificate dated as of the Closing Date from an officer of each of MBS and WCare stating that the conditions specified in Section 3.5(a)5.3 have been fully satisfied or waived by MBS and WCare, (b), and (d);as applicable; and
(iii) As provided in Section 3.5(e), a certificate of existence and good standing for from the Buyer as Secretaries of Texas and Nevada, each of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents recent date, with respect to MBS and WCare, as the Seller may reasonably request to give effect to this Agreement or the Transaction Documentsapplicable.
Appears in 1 contract
Sources: Merger Agreement (Mb Software Corp)
Closing Deliverables. (a) At or before the Closing, the Seller Company shall deliver, execute and deliver, or cause to be executed and delivered, as applicable, to the Buyer each of Parent (or other Persons where indicated) the following:
(i) As required a certificate, dated as of the Closing Date, executed on behalf of the Company by Section 3.4(h), certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in its Chief Executive Officer and Chief Financial Officer to the Stock, and, to effect that each of the extent conditions set forth in clauses (a) and (c) of Section 5.3 has been satisfied (the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyer“Company Certificate”);
(ii) The certificates required under Section 3.4(a)a certificate, (b)dated as of the Closing Date, (e)of the secretary of the Company, certifying that attached thereto are accurate copies of the Charter Documents and (i)board of directors actions and stockholders’ actions in connection with the Transactions;
(iii) As required under Section 3.4(g), a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Company’s Chief Financial Officer attaching the Closing Date issued by Statement and the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency Funds Flow Statement and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogalescertifying that they are correct and complete;
(iv) Duly a good standing certificate for the Company issued by (A) the Secretary of State of the State of Delaware and (B) the Secretary of State of the State of Colorado, in each case within five days of the Closing Date;
(v) evidence reasonably satisfactory to Parent that (A) the approval or consent of each counterparty to the Contracts listed on Section 1.3(a)(v)(A) of the Disclosure Schedule has been obtained with respect to the consummation of the Transactions, and (B) the Company has provided written notice to each counterparty to the Contracts listed on Section 1.3(a)(v)(B) of the Disclosure Schedule with respect to the consummation of the Transactions;
(vi) a FIRPTA Notification Letter addressed to Parent, dated as of the Closing Date and duly executed resignationsby the Company and satisfying each of the requirements of Treasury Regulations Section 1.897-2(h) and Section 1.1445-2(c)(3) and stating that the Company has not been a United States Real Property Holding Corporation as defined in Section 897(c)(2) of the Code within the applicable period set forth in Section 897(c)(1)(A)(ii) of the Code and that no interest in the Company is a United States Real Property Interest as defined in Section 897(c)(1) of the Code;
(vii) a notice to the IRS, in accordance with the requirements of Treasury Regulation Section 1.897-2(h)(2), dated as of the Closing Date, executed by the Company, together with written authorization for Parent to deliver or cause to be delivered such notice to the Internal Revenue Service (“IRS”) after the Effective Time;
(viii) letters of resignation, in a form acceptable to Parent, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), duly executed by each of the consents, approvals, directors and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status officers of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the BuyerCompany;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of Joinder Agreements duly executed by each stockholder of the SubsidiariesCompany and each Founder;
(x) The IP Releaselock-up agreements in the form of Exhibit F (“Lock-Up Agreement”), duly executed by each stockholder of the Company and each Founder;
(xi) a copy of the Escrow Agreement, duly executed by the Representative;
(xii) evidence reasonably satisfactory to Parent that the conditions set forth in clauses (d), (e) and (f) of Section 5.3 have been satisfied;
(xiii) a certification of trust executed by each of the Company’s stockholders organized in the form of a trust or limited liability company for estate planning purposes, in substance and form reasonably acceptable to Parent;
(xiv) evidence reasonably satisfactory to Parent that the 401(k) Plan has been terminated prior to the Closing Date;
(xv) evidence reasonably satisfactory to Parent that the Tail & D&O Policies have been bound not later than the Closing Date;
(xvi) a certificate, dated as of the Closing Date, in the form of Exhibit J (the “Supplemental Certificate”), executed on behalf of the Company by its Chief Executive Officer;
(xvii) (A) reissued audited financial statements (including footnotes) of the Company as of and for the fiscal year ended December 31, 2021 (in a form and presentation reasonably acceptable to Parent for purposes of applicable securities Laws and GAAP, such acceptance by Parent not to be unreasonably withheld, conditioned or delayed) (the “Reissued Financial Statements”), (B) written consent of the Company’s independent auditors to the incorporation by reference of their audit report related to the Reissued Financial Statements to appear in Parent’s Current Report on Form 8-K/A (to be filed at a future date), and (C) an engagement letter, duly signed by the Company and its independent auditor, which shall include agreed-upon scope, timing and fees reasonably acceptable to Parent, for review procedures to be performed by the Company’s independent auditors on the unaudited interim financial statements of the Company (including footnotes) as of and for the three months ended March 31, 2022; and
(xixviii) Such other documents as a copy of the Buyer may reasonably request to give effect to this Agreement or Certificate of Merger duly executed by the Transaction DocumentsCompany.
(b) At or before the Closing, the Buyer Parent shall deliver, execute and deliver, or cause to be executed and delivered, as applicable, to the Seller Company (or other Persons where indicated) the following:
(i) The a certificate, dated as of the Closing Purchase Price Date, executed on behalf of Parent by one of its officers to the effect that each of the conditions set forth in accordance with clause (a) of Section 2.35.2 has been satisfied;
(ii) The certificates required to be delivered pursuant to Section 3.5(a)a copy of the Escrow Agreement, (b), duly executed by Parent and (d)the Escrow Agent;
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (3) Business Days copy of the Closing issued Second Certificate of Merger duly executed by the applicable agency in its jurisdiction of formation;Merger Sub 2; and
(iv) The Transition Services Agreement; and
(v) Such other documents as a copy of the Seller may reasonably request to give effect to this Agreement or the Transaction DocumentsThird Certificate of Merger duly executed by NWC.
Appears in 1 contract
Sources: Merger Agreement (Nerdwallet, Inc.)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, delivered to the Buyer each of the followingAcquiror:
(i) As required a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the Buyerand Section 9.2(b) have been fulfilled;
(ii) The certificates required under the written resignations of all of the directors of the Company (other than those Persons identified as the initial directors of the Surviving Company, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)the Registration Rights Agreement, duly executed by a certificate of good standing for each Subsidiary of a date within three (3) Business Days duly authorized representative of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as Company and each of the date issued by stockholders set forth in Section 2.4(a)(iii) of the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesCompany Disclosure Letter;
(iv) Duly the Stockholders’ Agreement, duly executed resignations, effective as by duly authorized representatives of the Closing, of each officer, director Company and manager of each Subsidiary as provided in Section 3.4(f);the Company’s stockholders party thereto; and
(v) The Transition Services Agreement;
a certificate on behalf of the Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulation Sections 1.897-2(g), (vih) As provided and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(c), each 897(c)(1)(A)(ii) of the consentsCode, approvalsa “United States real property interest” within the meaning of Section 897(c) of the Code, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the a form of notice to the sample certification set forth Internal Revenue Service prepared in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed accordance with the Closing and be entitled to withhold the amount required to be withheld pursuant to provisions of Treasury Regulations Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents1.897-2(h)(2).
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with to the Exchange Agent, the Aggregate Merger Consideration into which the Company Common Stock has been converted for further distribution to the Company’s stockholders pursuant to Section 2.33.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement, duly executed by duly authorized representatives of good standing for Acquiror and the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formationSponsor;
(iv) The Transition Services the Stockholders’ Agreement, duly executed by Acquiror; and
(v) Such to the Company, the written resignations of all of the directors and officers of Acquiror (other documents than those Persons identified as the Seller may reasonably request initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Effective Time.
(c) On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to give effect be paid by wire transfer of immediately available funds, (i) all accrued transaction expenses of Acquiror, including transaction expenses incurred by Acquiror’s Affiliates on Acquiror’s behalf (including any HSR filing fees, any FATA notification fees and any outstanding amounts under any Working Capital Loans) as set forth on a written statement to this Agreement be delivered to the Company not less than two (2) Business Days prior to the Closing Date and (ii) all accrued and unpaid Transaction Expenses (“Unpaid Transaction Expenses”) as set forth on a written statement to be delivered to Acquiror by or on behalf of the Company not less than two (2) Business Days prior to the Closing Date, which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided that any Unpaid Transaction DocumentsExpenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyerconditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued Registration Rights Agreement, duly executed by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by Major Company Stockholders who have elected to execute the applicable agency shall be applied for upon execution of this Registration Rights Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;; and
(iv) Duly executed resignationsto Acquiror, effective as a certificate on behalf of the ClosingCompany, prepared in a manner consistent and in accordance with the requirements of each officerTreasury Regulation Sections 1.897-2(g), director (h) and manager of each Subsidiary as provided 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(f);
(v897(c)(1)(A)(ii) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consentsCode, approvalsa “U.S. real property interest” within the meaning of Section 897(c) of the Code, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the a form of notice to the sample certification set forth Internal Revenue Service prepared in accordance with the provisions of Treasury Regulation Regulations Section 1.14451.897-2(b)(2)(iv)(B) (a “FIRPTA Certificate”2(h)(2); provided, however, that if notwithstanding anything to the Seller fails to provide a FIRPTA Certificatecontrary, the Buyer sole remedy under this Agreement for any failure of the Company to deliver a certification and notice pursuant to this Section 2.4(a)(iv) shall be entitled to proceed with for Acquiror, the Closing and be entitled Company or the Exchange Agent, as applicable, to withhold the amount from payments pursuant to this Agreement in accordance with Section 3.4 any Taxes that are required to be withheld by such Person pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests reason of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documentssuch failure.
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price to the Exchange Agent, the portion of the Aggregate Merger Consideration payable in accordance with respect of the Company Exchange Shares, for further distribution to the Company’s stockholders pursuant to Section 2.33.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement, duly executed by duly authorized representatives of good standing for Acquiror and the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;Sponsor; and
(iv) The Transition Services Agreement; andto the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other than those Persons identified as initial directors or officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6 ), effective as of the Effective Time.
(vc) Such other documents At the Closing, Acquiror shall pay or cause to be paid, by wire transfer of immediately available funds, (i) all Outstanding Acquiror Expenses as set forth on the Seller may reasonably request final Acquiror Closing Statement and (ii) all accrued and unpaid Company Transaction Liabilities (“Unpaid Company Transaction Liabilities”) as set forth on the final Company Closing Statement; provided, that any Unpaid Company Transaction Liabilities due to give effect current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to this Agreement the Company for further payment to such employee, independent contractor, officer or director through the Transaction DocumentsCompany’s payroll.
Appears in 1 contract
Sources: Merger Agreement (Northern Genesis Acquisition Corp. II)
Closing Deliverables. (a) At Closingthe Closing (unless otherwise specified), the Seller Company shall deliver, deliver or cause to be delivered, delivered to the Buyer each of the followingPurchaser:
(i) As required by Section 3.4(h), certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership reasonably satisfactory to the BuyerPurchaser of the Company’s receipt of the Required Stockholder Approval;
(ii) The certificates required under Section 3.4(a), (b), (e), a filed copy of the Charter Amendment and (i)evidence reasonably satisfactory to the Purchaser that the Charter Amendment has become effective in accordance with its terms;
(iii) As required under Section 3.4(g)within three days of Closing, a certificate of good standing for each Subsidiary of a date within three (3) Business Days certificate, registered in the name of the Closing Date issued by Purchaser, evidencing the applicable agency in its jurisdiction number of organization or formation, except for Nogales, which certificate of good standing issued by Shares as set forth under the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of Purchaser’s name on the date issued by signature page hereof next to the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogaleslabel “Shares”;
(iv) Duly the Registration Rights Agreement, duly executed by the Company;
(v) the Transfer Agent Instructions;
(vi) the Warrants, duly executed by the Company;
(vii) the (A) Amendment to ▇▇▇▇▇▇ Employment Agreement and (B) ▇▇▇▇▇▇ Consulting Agreement, each duly executed by the Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇;
(viii) the resignations, effective as of the Closing, of each officer, director the Board members and manager officers of each Subsidiary as provided in Section 3.4(fthe Company listed on Schedule 2.2(a)(viii);
(ix) a certificate of the Secretary of the Company certifying as to (A) Organizational Documents of the Company, (B) the resolutions adopted by the Board prior to the execution of this Agreement approving and authorizing (i) the Company’s execution and delivery of this Agreement, (ii) the Charter Amendment, (iii) the Stock Incentive Plan Amendment, (iv) the Option Grant, (v) The Transition Services Agreementthe appointment, to be effective immediately upon the Closing, of the individuals listed on Schedule 2.2(a)(ix), (vi) consummation of the transactions contemplated hereby, and (vii) recommendation of such matters to the stockholders of the Company for their approval, and (C) the incumbency of the Company’s officers who are authorized to execute and deliver this Agreement and any other agreements or instruments on behalf of the Company;
(vix) As provided a certificate of the Chief Executive Officer and Chief Financial Officer of the Company certifying as to (A) the matters described in Section 3.4(cSections 2.3(b)(i), each of the consents, approvals2.3(b)(ii) and 2.3(b)(vii) below, and waivers that are listed on Schedule 4.3;
(viiB) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any such other Tax forms matters as may be reasonably requested in writing by the BuyerPurchaser, including (without limitation) with respect to the Company’s listing status on the NYSE Amex Stock Market;
(ixxi) All certificates evidencing evidence reasonably satisfactory to the capital stock, quotas and other equity interests of each Purchaser of the Subsidiaries;
(x) The IP Releaseapproval by the NYSE Amex Stock Market of the Company’s Supplemental Listing Application pertaining to, among other things, the issuance and sale of the Securities pursuant to this Agreement; and
(xixii) Such a good standing certificate issued by the Secretary of State of the State of Colorado (or other documents as applicable Governmental Authority), dated not more than two (2) Business Days prior to the Buyer may reasonably request to give effect to this Agreement or Closing Date, attesting the Transaction Documentsgood standing of the Company in the State of Colorado.
(b) At the Closing, the Buyer Purchaser shall deliver, deliver or cause to be delivered, delivered to the Seller the followingCompany:
(i) The Closing Purchase Price in accordance with Section 2.3;pursuant to the terms and conditions of the Escrow Agreement, the Investment Amount, by wire transfer of immediately available funds to an account designated by the Company; and
(ii) The certificates required to be delivered pursuant to Section 3.5(a)the Registration Rights Agreement, (b), and (d);
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (3) Business Days of the Closing issued duly executed by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction DocumentsPurchaser.
Appears in 1 contract
Sources: Securities Purchase Agreement (Accelr8 Technology Corp)
Closing Deliverables. 5.1. Upon the Effective Date, or as soon as practicable thereafter, the Company shall deliver the following to the Subscriber:
(a) At Closinga certificate from the sole Director of the Company certifying that (a) the representations and warranties of the Company set forth in Sections 4.1 and 4.2 are true and correct in all respects as of the Effective Date and (b) the Company has performed and complied with all covenants, the Seller shall deliveragreements, or cause obligations and conditions contained in this Agreement that were required to be delivered, to performed or complied with by the Buyer each of Company on or before the following:
(i) As required by Section 3.4(h), certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the BuyerEffective Date;
(iib) The certificates required under Section 3.4(a)an opinion, (b)from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ Limited, (e)counsel for the Company, and (i);
(iii) As required under Section 3.4(g), a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective dated as of the date issued by Effective Date, in substantially the applicable agency and shall be provided form of Exhibit C attached to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignations, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services this Agreement;
(vic) As provided in Section 3.4(c), the Investor Rights Agreement executed by the Company each of the consents, approvals, and waivers that are listed on Schedule 4.3“Investor” named therein;
(viid) A duly the Right of First Refusal and Co-Sale Agreement executed certificate of non-foreign status of by the SellerCompany, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a each “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing Investor” named therein and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereundereach “Key Holder” named therein;
(viiie) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested certificate by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each Secretary of the Subsidiaries;
Company certifying (xi) The IP Releasethe bye-laws of the Company, (ii) the memorandum of association of the Company, (iii) and resolutions of the Board of Directors of the Company approving this Agreement and the Shareholder Agreements; and
(xif) Such good standing certificates (or equivalent) from each jurisdiction in which the Company is either organized or qualified to do business.
5.2. All corporate and other proceedings in connection with the transactions contemplated under this Agreement upon the Effective Date and all documents incident thereto shall be reasonably satisfactory in form and substance to the Subscriber, and the Subscriber (or its counsel) shall have received all such counterpart original and certified or other copies of such documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documentsrequested.
(b) At Closing, the Buyer shall deliver, or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with Section 2.3;
(ii) The certificates required to be delivered pursuant to Section 3.5(a), (b), and (d);
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction Documents.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller Company shall deliver, deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(c) have been fulfilled;
(ii) The certificates required under Section 3.4(a)to Acquiror, (b)the Registration Rights Agreement, (e), and (i);duly executed by the Company Stockholders identified on Schedule 2.4(a)(ii) attached hereto; and
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for each Subsidiary of a date within three (3) Business Days on behalf of the Closing Date issued by Company, prepared in a manner consistent and in accordance with the applicable agency requirements of Treasury Regulation Sections 1.897-2(g) and (h) and 1.1445-2(c)(3), certifying that no interest in its jurisdiction of organization the Company is, or formation, except for Nogales, which certificate of good standing issued by has been during the applicable agency shall be applied for upon execution of this Agreement, shall be effective as relevant period specified in Section 897(c)(1)(A)(ii) of the date issued by Code, a “U.S. real property interest” within the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(ivmeaning of Section 897(c) Duly executed resignations, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consents, approvalsCode, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the a form of notice to the sample certification set forth Internal Revenue Service prepared in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed accordance with the Closing and be entitled to withhold the amount required to be withheld pursuant to provisions of Treasury Regulations Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents1.897-2(h)(2).
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The to the Company, a certificate signed by an officer of Acquiror, dated the Closing Purchase Price Date, certifying that, to the knowledge and belief of such officer, the conditions specified in accordance with Section 2.3Section 9.3(a), Section 9.3(b) and Section 9.3(c) have been fulfilled;
(ii) The certificates required to be delivered pursuant to Section 3.5(a)the Company, (b)the Registration Rights Agreement, duly executed by duly authorized representatives of Acquiror and (d);the Sponsor; and
(iii) As provided to the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other than those Persons identified as the directors and officers, of Acquiror after the Domestication, in accordance with Section 3.5(e2.6, Section 7.6, and as otherwise agreed between the parties, including pursuant to Section 7.7), a certificate of good standing for the Buyer effective as of a date within three the Effective Time.
(3c) Business Days of On the Closing issued Date, substantially concurrent with the Effective Time, Acquiror shall pay or reimburse or cause to be paid or reimbursed by wire transfer of immediately available funds, (i) all accrued and unpaid Acquiror Transaction Expenses (ii) all accrued and unpaid Company Transaction Expenses, and, if applicable, (iii) the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction DocumentsAcquiror Share Redemption Amount.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller Company shall deliver, or cause to be delivered, to Parent:
(i) the Escrow Agreement duly executed by the Stockholders’ Representative;
(ii) a certificate, dated as of the Closing Date, executed on behalf of the Company by the Chief Executive Officer of the Company, solely in his capacity as Chief Executive Officer of the Company and without personal liability, to the effect that each of the conditions set forth in Sections 6.2(a) and (b) has been satisfied;
(iii) a certificate, dated as of the Closing Date, of the Secretary of the Company, solely in his or her capacity as Secretary of the Company and without personal liability, attaching copies of the Company’s certificate of incorporation, bylaws, board of directors’ resolutions approving the Merger and the other transactions contemplated by this Agreement and stockholders’ actions, as applicable, in connection with the Merger and the other transactions contemplated by this Agreement;
(iv) certificates, dated within five (5) Business Days of the Closing Date, from the Secretary of State of the State of Delaware certifying that the Company is in good standing;
(v) a certificate, dated as of the Closing Date and validly executed by a duly authorized officer of the Company, in form and substance required under the Treasury Regulations issued pursuant to Section 1445(b)(3) of the Code, stating that the Company is not and has not been a “United States real property holding corporation” (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, and a copy of the notice of such certification to be sent to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2), together with written authorization for Parent to deliver such notice to the IRS on behalf of the Company following the Closing, in each case, in a form reasonably acceptable to Parent and the Company acting in good faith; and
(vi) a letter, in substantially the form attached hereto as Exhibit H (the “Side Letter”), dated as of the Closing Date and executed by the Company.
(b) At the Closing, Parent shall deliver, or cause to be delivered, to the Buyer each of the followingCompany:
(i) As required by Section 3.4(h), certificates evidencing the Stock duly endorsed in blank or accompanied by powers Escrow Agreement duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyerby Parent;
(ii) The certificates required under Section 3.4(a), (b), (e), and (i)the Side Letter duly executed by Parent;
(iii) As required under Section 3.4(g)a certificate, dated as of the Closing Date, executed on behalf of Parent by a certificate duly authorized officer, solely in his or her capacity as an officer of good standing for Parent and without personal liability, to the effect that each Subsidiary of the conditions set forth in Sections 6.3(a) and (b) has been satisfied; and
(iv) a date certificate, dated within three five (35) Business Days of the Closing Date issued by Date, from the applicable agency in its jurisdiction Secretary of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as State of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date State of Georgia certifying that Parent is extended past April 1, 2019, Seller shall use in good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignations, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f)standing;
(v) The Transition Services a certificate, dated as of the Closing Date, of the Secretary of the Merger Sub, solely in his or her capacity as Secretary of Merger Sub and without personal liability, attaching copies of Merger Sub’s certificate of incorporation, bylaws, board of directors’ resolutions approving the Merger and the other transactions contemplated by this Agreement and stockholders’ actions, as applicable, in connection with the Merger and the other transactions contemplated by this Agreement;; and
(vi) As provided in Section 3.4(c)a certificate, each dated within five (5) Business Days of the consentsClosing Date, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate from the Secretary of non-foreign status State of the Seller, substantially State of Delaware certifying that Merger Sub is in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documentsgood standing.
(bc) At the Closing, the Buyer Parent shall deliver, or cause to be delivered, to the Seller the following:payments set forth in Section 1.8(c).
(id) The Closing Purchase Price in accordance At the Closing, Parent shall file the Parent Charter Amendment with Section 2.3;
(ii) The certificates required to be delivered pursuant to Section 3.5(a), (b), and (d);
(iii) As provided in Section 3.5(e), a certificate the Secretary of good standing for the Buyer as of a date within three (3) Business Days State of the Closing issued by the applicable agency in its jurisdiction State of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction DocumentsGeorgia.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyerconditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under to Acquiror, the Registration Rights Agreement and each Lock-Up Agreement, subject to Section 3.4(g)6.8, a certificate of good standing for each Subsidiary of a date within three (3) Business Days duly executed by the stockholders of the Closing Date issued by Company set forth on Section 2.4(a)(iii) if the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;Company Disclosure Letter; and
(iv) Duly executed resignationsto Acquiror, effective as a certificate on behalf of the ClosingCompany dated no more than thirty (30) days prior to the Closing Date, prepared in a manner consistent and in accordance with the requirements of each officerTreasury Regulations Sections 1.897-2(g), director (h) and manager of each Subsidiary as provided 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(f);
(v897(c)(1)(A)(ii) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consentsCode, approvalsa “U.S. real property interest” within the meaning of Section 897(c) of the Code, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the a form of notice to the sample certification set forth Internal Revenue Service prepared in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed accordance with the Closing and be entitled to withhold the amount required to be withheld pursuant to provisions of Treasury Regulations Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents1.897-2(h)(2).
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with to the Exchange Agent, the Aggregate Merger Consideration for further distribution to the Company’s stockholders pursuant to Section 2.33.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement and each Lock-Up Agreement, duly executed by duly authorized representatives of good standing for Acquiror and the Buyer as of a date within three (3) Business Days Sponsor and each of the Closing issued by other parties listed on the applicable agency in its jurisdiction of formationSchedule to the Sponsor Support Agreement;
(iv) The Transition Services Agreementto the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Effective Time; and
(v) Such The certificate of incorporation and bylaws of Acquiror shall have been amended and restated substantially in the forms attached as Exhibit A and Exhibit B hereto.
(c) On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, (i) 2022 Company Convertible Note Payoff Amount (and shall cause to be executed and filed Uniform Commercial Code Termination Statements and such other documents or endorsements reasonably necessary to release all Liens and other security interests in the assets and properties of the Company and its Subsidiaries), (ii) all accrued transaction expenses of Acquiror, including the Deferred Underwriting Fee Amount, and those incurred, accrued, paid or payable by Acquiror’s Affiliates on Acquiror’s behalf (which shall include any outstanding amounts under any Working Capital Loans) as set forth on a written statement (the Seller may “Acquiror Closing Statement”) to be delivered to the Company not less than two (2) Business Days prior to the Closing Date, which shall include reasonable supporting documentation used by Acquiror in determining such transaction expenses, including corresponding invoices or similar documentation accounting for such costs and (iii) all accrued and unpaid Transaction Expenses (“Unpaid Transaction Expenses”) as set forth on a written statement (the “Closing Statement”) to be delivered to Acquiror by or on behalf of the Company not less than two (2) Business Days prior to the Closing Date, which shall include (A) the respective amounts and wire transfer instructions for the payment thereof, and (B) reasonable supporting documentation used by the Company in determining the Unpaid Transaction Expenses, including corresponding invoices or similar documentation accounting for such costs; provided, that any Unpaid Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll. Acquiror and its representatives shall have a reasonable opportunity to review and discuss with the Company and its representatives the documentation provided in connection with the Closing Statement. The Company shall, and shall procure its Subsidiaries to, reasonably request assist Acquiror and its representatives in its review of such documentation and shall consider in good faith Acquiror’s comments on the Closing Statement, and if any adjustments are made to give effect the Closing Statement prior to the Closing, such adjusted Closing Statement shall thereafter become the Closing Statement for purposes of this Agreement or Agreement; provided, for the Transaction Documentsavoidance of doubt, that in no event will the Closing be conditioned upon making any adjustments requested by Acquiror. The Company and its representatives shall have a reasonable opportunity to review and discuss with Acquiror and its representatives the documentation provided in connection with the Acquiror Closing Statement. Acquiror shall, and shall procure its representatives to, reasonably assist the Company and its representatives in its review of such documentation and shall consider in good faith the Company’s comments on the Acquiror Closing Statement, and if any adjustments are made to the Acquiror Closing Statement prior to the Closing, such adjusted Acquiror Closing Statement shall thereafter become the Acquiror Closing Statement for purposes of this Agreement; provided, for the avoidance of doubt, that in no event will the Closing be conditioned upon making any adjustments requested by the Company.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Bright Lights, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyerconditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled;
(ii) The certificates required under to Bright Lights, the written resignations of all of the managers of the Company (other than any such Persons identified as initial managers of the Surviving Entity, in accordance with Section 3.4(a2.8), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Bright Lights, a certificate of good standing for the Registration Rights Agreement, duly executed by each Subsidiary of a date within three (3) Business Days of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesMajor Company Equityholders;
(iv) Duly executed resignationsto Bright Lights, effective as evidence that all Affiliate Agreements set forth on Section 6.4 of the ClosingCompany Disclosure Letter have been terminated or settled at or prior to the Closing without further liability to Bright Lights, the Company or any of the Company’s Subsidiaries, in each officercase, director and manager except as otherwise noted on Section 6.4 of each Subsidiary as provided in Section 3.4(f)the Company Disclosure Letter;
(v) The Transition Services to Bright Lights, copies of (A) the Restated Company Agreement, duly approved and adopted by the Board of Managers of the Company and its members in connection with the terms of the Restructuring Agreement, pursuant to which Intermediate Holdco has been duly appointed as managing member of the Company; and (B) evidence reasonably satisfactory to Bright Lights that the unitization has been consummated in accordance with the Restructuring Agreement;
(vi) As provided to Bright Lights, payoff letters, in Section 3.4(c)customary form, each delivered by Silicon Valley Bank, in respect of the consents, approvalsSVB Loan and Security Agreement, and waivers that are listed on Schedule 4.3Ocean II PLO LLC, in respect of the SCI Loan and Security Agreement (collectively, the “Payoff Letters”);
(vii) A duly executed to Bright Lights, a certificate on behalf of nonManscaped, Inc., prepared in a manner consistent and in accordance with the requirements of Treasury Regulations Sections 1.897-foreign status 2(g), (h) and 1.1445-2(c)(3), certifying that no interest in Manscaped, Inc. is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the SellerCode, substantially in a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the sample certification set forth Internal Revenue Service prepared in accordance with the provisions of Treasury Regulation Regulations Section 1.897-2(h)(2); and
(viii) to Bright Lights, a certificate on behalf of the Company conforming to the requirements of Treasury Regulations Section 1.1445-2(b)(2)(iv)(B11T(d)(2).
(b) At the Closing, ParentCo and Bright Lights will deliver or cause to be delivered:
(i) to the Exchange Agent, the ParentCo Merger Consideration for further distribution to Bright Lights’ stockholders pursuant to Section 3.6;
(ii) to the Company, a certificate signed by an officer of Bright Lights, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(iii) to the Company, the Registration Rights Agreement, duly executed by duly authorized representatives of ParentCo, Bright Lights and the Sponsor and each of the other parties listed on Schedule I of the Sponsor Support Agreement;
(iv) to the Company, the written resignations of all of the directors and officers of ParentCo and Merger Sub LLC (other than those Persons identified as the initial directors and officers, respectively, of ParentCo after the Third Effective Time, in accordance with the provisions of Section 2.8 and Section 7.6), effective as of the Third Effective Time; and
(v) to the Company, a copy of the Restated Company Agreement, duly executed by Intermediate Holdco, pursuant to which Intermediate Holdco has been duly appointed as managing member of the Company;
(c) On the Closing Date, the Surviving Corporation shall pay or cause to be paid by wire transfer of immediately available funds, (i) all accrued transaction expenses of Bright Lights and those incurred, accrued, paid or payable by Bright Lights’ Affiliates on Bright Lights’ behalf (which shall include any outstanding amounts under any Working Capital Loans, and any Transfer Taxes imposed on or attributable to Bright Lights, its shareholders, or any Bright Lights Affiliates) as set forth on a written statement to be delivered to the Company not less than two (2) Business Days prior to the Closing Date and (ii) reimbursement of all previously paid Transaction Expenses and all accrued and unpaid Transaction Expenses (“FIRPTA CertificateUnpaid Transaction Expenses”); provided, that if any Unpaid Transaction Expenses due to current or former employees, independent contractors, officers, managers or directors of the Seller fails to provide a FIRPTA Certificate, the Buyer Company or any of its Subsidiaries shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable paid to the BuyerCompany for further payment to such employee, and any other Tax forms as may be reasonably requested by independent contractor, officer manager or director through the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsCompany’s payroll.
(b) At Closing, the Buyer shall deliver, or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with Section 2.3;
(ii) The certificates required to be delivered pursuant to Section 3.5(a), (b), and (d);
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction Documents.
Appears in 1 contract
Sources: Business Combination Agreement (Bright Lights Acquisition Corp.)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required by Section 3.4(h), certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockExchange Agent, and, the Closing Share Consideration for further distribution to the extent the Stock is not certificated, other customary evidence of ownership satisfactory SPAC Stockholders pursuant to the BuyerSection 3.03;
(ii) The certificates required under to SPAC, a certificate signed by an executive officer of the Company, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.4(a7.02(a), (b), (e), Section 7.02(b) and (i)Section 7.02(c) have been fulfilled;
(iii) As required under to SPAC, the written resignations of all of the directors of the Company and Merger Sub (other than those Persons identified as the initial directors of the Company, in accordance with the provisions of Section 3.4(g2.06 and Section 6.12), a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesEffective Time;
(iv) Duly to SPAC, the Investor Rights Agreement, duly executed resignations, effective as by each Company Shareholder set forth on Section 2.04(a)(iv) of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);Company Disclosure Letter; and
(v) The Transition Services Agreement;
(vi) As provided in to SPAC, evidence that the Affiliate Agreements set forth on Section 3.4(c), each 6.14 of the consentsCompany Disclosure Letter have been terminated or settled at or prior to the Closing without further liability to, approvalsor obligation of, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status SPAC, the Company or any of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Company’s Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents.
(b) At the Closing, the Buyer shall deliver, SPAC will deliver or cause to be delivered, to the Seller the following:
(i) The to the Company, a certificate signed by an executive officer of SPAC, dated the Closing Purchase Price Date, certifying that, to the knowledge and belief of such officer, the conditions specified in accordance with Section 2.37.03(a) and Section 7.03(b) have been fulfilled;
(ii) The certificates required to be delivered pursuant to Section 3.5(a)the Company, (b)the Investor Rights Agreement, duly executed by duly authorized representatives of SPAC and (d)the Sponsor;
(iii) As provided to the Company, the written resignations of all of the directors and officers of SPAC (other than those Persons identified as the initial directors and officers, respectively, of SPAC after the Effective Time, in accordance with the provisions of Section 3.5(e2.06 and Section 6.12), a certificate of good standing for the Buyer effective as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;Effective Time; and
(iv) The Transition Services Agreement; andto the Company, a certification from SPAC pursuant to Treasury Regulations Section 1.1445-2(c) and a notice to be delivered to the United States Internal Revenue Service as required under Treasury Regulations Section 1.897-2(h)(2), each dated no more than thirty (30) days prior to the Closing Date, in a form reasonably acceptable to the Company, and signed by a responsible corporate officer of SPAC.
(vc) Such No sooner than five (5) or later than two (2) Business Days prior to the Closing Date, the Company shall deliver to SPAC a certificate duly executed by an authorized officer of the Company (the “Company Closing Statement”) setting forth the Company’s good faith estimate of the Company’s calculation of the components of the Closing Adjustment Amount.
(d) No sooner than five (5) or later than (2) Business Days prior to the Closing Date, SPAC shall deliver to the Company a certificate duly executed by an authorized officer of SPAC (the “SPAC Closing Statement” and, together with the Company Closing Statement, the “Closing Statements”), setting forth (i) SPAC’s good faith estimate of the SPAC’s calculation of the Total Cash Raise and the components thereof, (ii) the aggregate accrued and unpaid SPAC Transaction Expenses as of the Reference Time (the “Unpaid SPAC Expenses” and, together with the Unpaid Company Expenses, the “Unpaid Transaction Expenses”), which with respect to Unpaid SPAC Expenses shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing and, if reasonably required by the Company, the certified Taxpayer Identification Numbers, of each payee, and (iii) SPAC’s good faith estimate of the cash that will be remaining in the Trust Account at the Closing following payment of the amounts required to satisfy the SPAC Stockholder Redemption Amount. At or promptly following the Closing, and in any event subject to the release of funds in the Trust Account pursuant to Section 6.16(b)(i)(2), the Company shall pay or cause to be paid, by wire transfer of immediately available funds, the Unpaid Transaction Expenses set forth on the Closing Statements; provided, that any Unpaid Company Expenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such Persons through the Company’s payroll.
(e) Each of the Company and SPAC shall (i) provide the other documents party hereto and its representatives with reasonable access, during normal business hours and upon reasonable notice, to the relevant books, records and finance personnel of such party to enable the other party hereto and such representatives to review and analyze the amounts set forth on the Closing Statements, and (ii) make such amendments to the Closing Statements as the Seller parties may reasonably request to give effect to this Agreement or the Transaction Documentsmutually and in good faith agree.
Appears in 1 contract
Sources: Business Combination Agreement (TWC Tech Holdings II Corp.)
Closing Deliverables. (a) At or prior to the Closing, the Seller Company shall deliver, or cause to be delivered, to Parent the following:
(i) resignations of the managers and officers of the Company and GPRP pursuant to Section 5.7;
(ii) a certificate, dated the Closing Date and signed by a duly authorized officer of the Company, that each of the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(iii) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that (A) attached thereto are true and complete copies of (1) all resolutions adopted by the Company Board authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby and (2) the Member Approval, and (B) all such resolutions are in full force and effect, unamended and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby;
(iv) true and complete copies of joinders to this Agreement, executed by (1) each person who executed the Member Approval and (2) each other Member of the Company (the “Joinders”);
(v) true and complete copies of the joinders to Parent’s Third Amended and Restated Limited Liability Company Agreement dated as of November 14, 2018 (the “Parent LLC Agreement”), executed by each Member receiving Common Units pursuant to the Merger and this Agreement;
(vi) good standing certificates (or equivalent) from the Secretary of State of the state of formation for the Company and GPRP;
(vii) at least five (5) Business Days prior to the Closing, the Estimated Schedule;
(viii) the Withholding Exemption Certificates;
(ix) employment offer letters for each of the individuals set forth on Section 2.4(a)(ix) of the Parent Disclosure Schedules, in the form of Exhibit B, duly executed by each such employee;
(x) restrictive covenant agreements with each of the Persons listed on
(1) Section 2.4(a)(x)(1) of the Parent Disclosure Schedules, in the form of Exhibit C-1, and (2) Section 2.4(a)(x)(2) of the Parent Disclosure Schedules, in the form of Exhibit C-2, duly executed by each such Person;
(xi) a purchase and sale agreement, in the form of Exhibit D (the “Mesquite PSA”), duly executed by DRN Holdings, LLC, a Nevada limited liability company (“DRN Holdings”);
(xii) an assignment and assumption of lease and ▇▇▇▇ of sale, in the form of Exhibit E (the “Wendover Assignment”), duly executed by DRN Holdings and consented to or acknowledged by the landlord party to such lease;
(xiii) a severance cancellation agreement between ▇▇▇ ▇▇▇▇▇▇▇▇ and Parent, pursuant to which Parent shall issue to ▇▇▇ ▇▇▇▇▇▇▇▇ 8,667 Common Units in lieu of severance that would otherwise be payable under the terms of his Executive Compensation Agreement with the Company (the “▇▇▇▇▇▇▇▇ Agreement”), duly executed by ▇▇▇ ▇▇▇▇▇▇▇▇; and
(xiv) such other documents or instruments as Parent reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.
(b) At the Closing, Parent shall deliver, or cause to be delivered, to the Buyer each of Company (or such other Person as may be specified herein) the following:
(i) As required payment to each Pay-Off Lender and GPRP by Section 3.4(h), certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments wire transfer of transfer as required in order to validly transfer title in and immediately available funds an amount equal to the Stock, and, Estimated Closing Indebtedness owing from the Company to such Pay-Off Lender or GPRP as set forth on the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the BuyerEstimated Schedule;
(ii) The certificates required under Section 3.4(a), (b), (e), payment of third parties by wire transfer of immediately available funds that amount of money due and (i)owing from the Company to such third parties as Company Transaction Expenses as set forth on the Estimated Schedule;
(iii) As required under Section 3.4(g)a certificate, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of dated the Closing Date issued and signed by the applicable agency in its jurisdiction a duly authorized officer of organization or formationCompany, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as that each of the date issued by the applicable agency conditions set forth in Section 7.3(a) and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesSection 7.3(b) have been satisfied;
(iv) Duly executed resignations, effective as a certificate of the ClosingSecretary or an Assistant Secretary (or equivalent officer) of Parent and Merger Sub certifying that attached thereto are true and complete copies of all resolutions adopted by the Parent Manager and Merger Sub Manager authorizing the execution, delivery and performance of each officerthis Agreement and the other Transaction Documents, director and manager the consummation of each Subsidiary as provided the transactions contemplated hereby and thereby, including, without limitation, the reservation and issuance of the Common Unit Consideration in Section 3.4(f)accordance with the terms hereof, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby;
(v) The Transition Services Agreementall documentation required under the policies of the CSE relating to the issuance of the shares of Common Units issuable as Merger Consideration including, but not limited to, any form, certificate and opinion required under Policy 6 of the CSE, if applicable;
(vi) As provided in Section 3.4(c), each the Mesquite PSA duly executed by Parent or one of the consents, approvals, and waivers that are listed on Schedule 4.3its Affiliates;
(vii) A the Wendover Assignment duly executed certificate by Parent or one of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunderits Affiliates;
(viii) A the ▇▇▇▇▇▇▇▇ Agreement, duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;Parent; and
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such such other documents or instruments as the Buyer may Company reasonably request requests and are reasonably necessary to give effect to consummate the transactions contemplated by this Agreement or the Transaction DocumentsAgreement.
(b) At Closing, the Buyer shall deliver, or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with Section 2.3;
(ii) The certificates required to be delivered pursuant to Section 3.5(a), (b), and (d);
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction Documents.
Appears in 1 contract
Sources: Merger Agreement
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificated, other customary evidence of ownership satisfactory to conditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled (the Buyer“Company Closing Certificate”);
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), effective as of the Effective Time;
(iii) to Acquiror, the Registration Rights Agreement, duly executed by the Major Company Stockholders who have elected to execute the Registration Rights Agreement; and
(iv) to Acquiror, a certificate on behalf of the Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulations Sections 1.897-2(g), (bh) and 1.1445-2(c)(3), (e)certifying that no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the IRS prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).
(b) At the Closing, Acquiror will deliver or cause to be delivered:
(i) to the Exchange Agent, the number of shares of Acquiror Post-Merger Class B Common Stock equal to the portion of the Aggregate Merger Consideration to be paid to holders of Company Capital Stock for further distribution to the Company’s stockholders pursuant to Section 3.2, provided, that, for the avoidance of doubt, such shares shall be delivered immediately following the effectiveness of the Acquiror Post-Merger Charter;
(ii) to the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled (the “Acquiror Closing Certificate”);
(iii) As required under Section 3.4(g)to the Company, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Registration Rights Agreement, shall be effective as duly executed by duly authorized representatives of Acquiror and the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;Sponsor; and
(iv) Duly executed resignationsto the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);Effective Time.
(vc) The Transition Services Agreement;
On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, without duplication, (vii) As provided in Section 3.4(c)(A) all accrued and unpaid Transaction Expenses of Acquiror (“Acquiror Transaction Expenses”) as set forth on a written statement to be delivered to the Company not less than three Business Days prior to the Closing Date, each and (B) any amounts outstanding under any Working Capital Loans, and (ii) all accrued and unpaid Transaction Expenses of the consents, approvals, and waivers that are listed Company (“Company Transaction Expenses”) as set forth on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status a written statement to be delivered to Acquiror by or on behalf of the SellerCompany not less than three Business Days prior to the Closing Date, substantially in which shall include the form of respective amounts and wire transfer instructions for the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”)payment thereof, together with corresponding invoices for the foregoing; provided, that if any Company Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Seller fails to provide a FIRPTA Certificate, the Buyer Company or any of its Subsidiaries shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable paid to the BuyerCompany for further payment to such employee, and any other Tax forms as may be reasonably requested by independent contractor, officer or director through the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsCompany’s payroll.
(b) At Closing, the Buyer shall deliver, or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with Section 2.3;
(ii) The certificates required to be delivered pursuant to Section 3.5(a), (b), and (d);
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction Documents.
Appears in 1 contract
Sources: Merger Agreement (Khosla Ventures Acquisition Co. II)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an authorized officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such authorized officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(c) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the managers and officers of the Company (other than any such Persons identified as initial managers of the Surviving Company, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued Registration Rights Agreement, duly executed by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesRequisite Company Unitholders;
(iv) Duly executed resignationsto Acquiror, effective as a certificate on behalf of the ClosingCompany, prepared in a manner consistent and in accordance with the requirements of each officerTreasury Regulations Sections 1.897-2(g), director (h) and manager of each Subsidiary as provided 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(f897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the IRS prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2), together with written authorization for Acquiror to deliver such documentation to the IRS on behalf of the Company after the Closing;
(v) The Transition Services Agreement;to Acquiror, (x) customary payoff letters in form and substance reasonably satisfactory to Acquiror from the holders of Existing Indebtedness or the agents representing the foregoing (the “Existing Lenders”) that is required to be repaid at the Closing (the “Payoff Letters”) (A) providing the instructions and total amounts for the payment in full of such Existing Indebtedness, together with interest, premiums, penalties, make-whole payments, breakage costs and other fees and expenses (if any) that are required to be paid by the Company as a result of the repayment in full on the Closing Date of such Existing Indebtedness (the “Payoff Amount”), by wire transfer of immediately available funds in accordance with the wire transfer instructions set forth in such Payoff Letters, (B) providing for the automatic and irrevocable release, upon receipt of the Payoff Amount, of (1) all Liens over the properties and assets (including all Company Intellectual Property) of the Company and its Subsidiaries securing obligations under such Existing Indebtedness and (2) any related guarantees and (C) providing that such Existing Indebtedness shall be repaid, discharged and satisfied in full upon receipt of the Payoff Amount, in each case, subject to the applicable provisions and terms that, by the terms of the applicable definitive documentation, survive repayment of such Existing Indebtedness or (y) reasonably satisfactory proof of either a refinancing of or plan to address the Existing Indebtedness on terms mutually agreed between the Company and Acquiror; and
(vi) As provided in Section 3.4(c)to Acquiror, each reasonably satisfactory proof of the consents, approvals, full repayment and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status final settlement of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsCatapult Note.
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price to the Exchange Agent, that portion of the Aggregate Merger Consideration to be paid in respect of Company Units in accordance with Section 2.33.1(a) (as set forth on the Allocation Schedule), for further distribution to such holders pursuant to Section 3.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an authorized officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such authorized officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement, duly executed by duly authorized representatives of good standing for Acquiror and the Buyer as Sponsor and the independent directors of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;Acquiror; and
(iv) The Transition Services Agreement; andto the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.5), effective as of the Effective Time.
(vc) Such other documents On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, with such payment made from the proceeds released from the Trust Account, (i) all accrued transaction expenses of Acquiror and those incurred, accrued, paid or payable by Acquiror’s Affiliates on Acquiror’s behalf (which shall include any outstanding amounts under any Working Capital Loans) as set forth on a written statement to be delivered to the Seller may reasonably request Company not less than two (2) Business Days prior to give effect the Closing Date and (ii) all accrued and unpaid Transaction Expenses as set forth on a written statement to this Agreement be delivered to Acquiror by or on behalf of the Company not less than two (2) Business Days prior to the Closing Date (“Unpaid Transaction DocumentsExpenses”), which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided, that any Unpaid Transaction Expenses due to current or former employees, independent contractors, officers, or managers of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll or accounts payable, as applicable.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyerconditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under to Acquiror, the Registration Rights Agreement, duly executed by the Major Company Stockholders who have elected to execute the Registration Rights Agreement;
(iv) to Acquiror, duly executed copies of all third party consents set forth on Section 3.4(g)2.4(a)(iv) of the Company Disclosure Letter; and
(v) to Acquiror, a certificate on behalf of good standing the Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulations Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the IRS prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).
(b) At the Closing, Acquiror will deliver or cause to be delivered:
(i) to the Exchange Agent, the number of shares of Acquiror Class A Common Stock equal to the portion of the Aggregate Merger Consideration to be paid to holders of Company Common Stock (other than in respect of Restricted Stock Awards) for further distribution to the Company’s stockholders pursuant to Section 3.2;
(ii) to the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(iii) to the Company, the Registration Rights Agreement, duly executed by duly authorized representatives of Acquiror, the Sponsor and each Subsidiary of the KVAC Holders (as defined therein); and
(iv) to the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Effective Time.
(c) On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, without duplication, (i) the following accrued and unpaid fees and expenses of Acquiror and its Affiliates (to the extent then owed by Acquiror): (A) all fees, costs, expenses, brokerage fees, commissions, finders’ fees and disbursements of Acquiror’s financial advisors, investment banks, data room administrators, attorneys, accountants and other advisors and service providers, in each case, in connection with the negotiation, documentation and consummation of the transactions contemplated hereby, (B) the portion of the fees payable by the Acquiror pursuant to Section 8.1(e) and Section 8.2(a)(vi), (C) all fees and expenses incurred in connection with obtaining approval of Nasdaq under Section 7.3, (D) repayment of any Working Capital Loans and (E) any deferred underwriting commissions and other fees relating to Acquiror’s initial public offering that are not paid out of the Trust Account ((A)-(E), together the “Acquiror Transaction Expenses”) as set forth on a date within written statement to be delivered to the Company Parties not less than three (3) Business Days of prior to the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignations, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consents, approvalsDate, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents.
(b) At Closing, the Buyer shall deliver, or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with Section 2.3;
(ii) The certificates required all accrued and unpaid Transaction Expenses (“Unpaid Transaction Expenses”) as set forth on a written statement to be delivered pursuant to Section 3.5(a), (b), and (d);
(iii) As provided in Section 3.5(e), a certificate Acquiror by or on behalf of good standing for the Buyer as of a date within Company Parties not less than three (3) Business Days prior to the Closing Date, which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided, that any Unpaid Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Closing issued by Company Parties or any of their Subsidiaries shall be paid to the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as Company for further payment to such employee, independent contractor, officer or director through the Seller may reasonably request to give effect to this Agreement or the Transaction DocumentsCompany’s payroll.
Appears in 1 contract
Closing Deliverables. (a) 2.3.1 At or prior to the Closing, the Seller Company shall deliver, or cause deliver to be delivered, to the Buyer each of the following:
2.3.1.1 evidence of termination (at or before the Effective Time) of all the outstanding company Warrants (the “Company Warrants”) set forth in Section 2.03(a)(vii) of the Company Disclosure Schedules;
2.3.1.2 the Resignations;
2.3.1.3 a certificate, dated the Closing Date and signed by a duly authorized officer of the Company, that each of the conditions set forth in Section 6.2.1 and Section 6.2.2 has been satisfied;
2.3.1.4 a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying (A) that attached thereto are true and complete copies of (1) all resolutions adopted by the Company Board authorizing the execution, delivery and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, and (2) the Stockholder Consent, (B) all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby, and (C) the names and signatures of the officers of the Company authorized to sign this Agreement and the other documents to be delivered hereunder and thereunder (the “Closing Secretary Certificate”);
2.3.1.5 a good standing certificate (or its equivalent) from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which the Company and any of its Subsidiaries is organized or qualified to do business;
2.3.1.6 the Closing CFO Certificate, evidencing, among other things, that (i) As required by Section 3.4(h), certificates evidencing the Stock duly endorsed Company’s total legal fees and expenses included in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in the Transaction Expenses do not exceed $500,000 and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyer;
(ii) The certificates required under Section 3.4(a), (b), (e), the Company’s total investment advisers’ fees and (i);expenses included in the Transaction Expenses do not exceed $150,000; and
(iii) As required under Section 3.4(g), a certificate of good standing for each Subsidiary of a date within three (3) Business Days of 2.3.1.7 the Closing Date issued by FIRPTA Certificate,
2.3.1.8 evidence that the applicable agency CRG Credit Agreement Amendment remains in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective full force and effect as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesEffective Time;
(iv) Duly executed resignations2.3.1.9 evidence in form and substance reasonably sufficient to confirm the delivery of all notices and receipt of all approvals, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the 3.4.1 and requested by Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;delivered or obtained; and
(viii) A duly executed IRS Form W-9 in a form and substance 2.3.1.10 written record reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates Buyer evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents.
(b) At Closing, the Buyer shall deliver, or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price amount referenced in accordance with Section 2.3;
clause (ii) The certificates required to be delivered pursuant to Section 3.5(a), (b), and (d);
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (3) Business Days of the Closing issued by definition of “Indebtedness” set forth above (related to the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction DocumentsPPP).
Appears in 1 contract
Sources: Merger Agreement (TearLab Corp)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(c) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for each Subsidiary of a date within three (3) Business Days the Registration Rights Agreement, duly executed by the stockholders of the Closing Date issued by the applicable agency Company set forth in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesSection 2.4(a);
(iv) Duly to Acquiror, Lock-Up Agreement B, duly executed resignationsby the Company Founders;
(v) to Acquiror, Lock-Up Agreement C, duly executed by the directors and executive officers of the Company and certain stockholders of the Company set forth on Exhibit A of Lock-Up Agreement C; and
(vi) to Acquiror, a certificate on behalf of the Company dated no more than thirty (30) days prior to the Closing Date, prepared in a manner consistent and in accordance with the requirements of Treasury Regulations Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the Internal Revenue Service prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).
(b) At the Closing, Acquiror will deliver or cause to be delivered:
(i) to the Exchange Agent, the Aggregate Merger Consideration for further distribution to the Company’s stockholders pursuant to Section 3.2;
(ii) to the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a), Section 9.3(b) and Section 9.3(c) and Section 9.3(d) have been fulfilled;
(iii) to the Company, the Registration Rights Agreement, duly executed by duly authorized representatives of Acquiror and the Sponsor;
(iv) to the Company, Lock-Up Agreement B and Lock-Up Agreement C, each duly executed by a duly authorized representative of Acquiror;
(v) to the Company, Lock-Up Agreement A, duly executed by a duly authorized representative of the Sponsor, the directors and executive officers of the Sponsor and a duly authorized representative of Acquiror; and
(vi) to the Company, the written resignations of all of the directors and officers of Acquiror and Merger Subs (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);Effective Time.
(vc) The Transition Services Agreement;
On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds: (vii) As provided in Section 3.4(c), each all accrued and unpaid Acquiror Transaction Expenses as set forth on a written statement to be delivered to the Company not less than two (2) Business Days prior to the Closing Date; and (ii) all accrued and unpaid Company Transaction Expenses as set forth on a written statement to be delivered to Acquiror by or on behalf of the consentsCompany not less than two (2) Business Days prior to the Closing Date, approvalswhich shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing (clauses (i) and waivers that are listed on Schedule 4.3;
(viiii) A duly executed certificate of non-foreign status of the Sellercollectively, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA CertificateUnpaid Transaction Expenses”); provided, that if any Unpaid Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Seller fails to provide a FIRPTA Certificate, the Buyer Company or any of its Subsidiaries shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable paid to the BuyerCompany for further payment to such employee, and any other Tax forms as may be reasonably requested by independent contractor, officer or director through the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsCompany’s payroll.
(b) At Closing, the Buyer shall deliver, or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with Section 2.3;
(ii) The certificates required to be delivered pursuant to Section 3.5(a), (b), and (d);
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction Documents.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller Company shall deliver, deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(c) have been fulfilled;
(ii) The certificates required under Section 3.4(ato Acquiror, the Registration Rights Agreement, duly executed by Color Up and HS3;
(iii) to each of Color Up and HS3, a counterpart to the A&R OP LPA, duly executed by the Company; and
(iv) to Acquiror, a duly executed and completed IRS Form W-9 from the Company and each holder of MIC Common Stock Warrants that are outstanding and unexpired as of the Closing provided, however, that the sole remedy of Acquiror for the failure to provide any such IRS Forms W-9 shall be to withhold Taxes from the consideration otherwise payable pursuant to this Agreement in accordance with Section 3.5.
(b) At the Closing, Acquiror will deliver or cause to be delivered:
(i) to the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a), Section 9.3(b) and Section 9.3(d) have been fulfilled;
(b)ii) to the Company, the Registration Rights Agreement, duly executed by duly authorized representatives of Acquiror, the Sponsor and the Holders (e), and (ias defined in the Sponsor Agreement);
(iii) As required under Section 3.4(g), a certificate of good standing for each Subsidiary of a date within three (3) Business Days copy of the Closing Date issued Trust Termination Letter, duly executed by the applicable agency in its jurisdiction a duly authorized representative of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;Acquiror; and
(iv) Duly executed resignationsto the Company, the written resignations of all of the directors and officers of the Acquiror Entities (other than those Persons identified as the directors and officers, of Acquiror after the Domestication, in accordance with Section 7.6 or as otherwise agreed between the parties), effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsEffective Time.
(b) At Closing, the Buyer shall deliver, or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with Section 2.3;
(ii) The certificates required to be delivered pursuant to Section 3.5(a), (b), and (d);
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction Documents.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyerconditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for the Registration Rights Agreement and each Subsidiary of a date within three (3) Business Days Lock-Up Agreement, duly executed by each of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;Major Company Stockholders; and
(iv) Duly executed resignationsto Acquiror, effective as a certificate on behalf of the ClosingCompany, prepared in a manner consistent and in accordance with the requirements of each officerTreasury Regulation Sections 1.897-2(g), director (h) and manager of each Subsidiary as provided 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(f);
(v897(c)(1)(A)(ii) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consentsCode, approvalsa “U.S. real property interest” within the meaning of Section 897(c) of the Code, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the a form of notice to the sample certification set forth Internal Revenue Service prepared in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed accordance with the Closing and be entitled to withhold the amount required to be withheld pursuant to provisions of Treasury Regulations Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents1.897-2(h)(2).
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with to the Exchange Agent, the Aggregate Merger Consideration for further distribution to the Company’s stockholders pursuant to Section 2.33.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement and each Lock-Up Agreement, duly executed by duly authorized representatives of good standing for Acquiror and the Buyer as of a date within three (3) Business Days Sponsor and each of the Closing issued by other parties listed on Schedule I of the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Sponsor Support Agreement; and
(viv) Such to the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other documents than those Persons identified as the Seller may reasonably request initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Effective Time.
(c) On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to give effect be paid by wire transfer of immediately available funds, (i) all accrued transaction expenses of Acquiror and those incurred, accrued, paid or payable by Acquiror’s Affiliates on Acquiror’s behalf (which shall include any outstanding amounts under any Working Capital Loans) as set forth on a written statement to this Agreement be delivered to the Company not less than two (2) Business Days prior to the Closing Date and (ii) all accrued and unpaid Transaction Expenses (“Unpaid Transaction Expenses”) as set forth on the Closing Statement; provided, that any Unpaid Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Transaction DocumentsCompany or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (ACE Convergence Acquisition Corp.)
Closing Deliverables. (a) At the Closing, the Seller shall deliverCompany, HoldCo and Merger Sub will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to SPAC, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 10.2(a), other customary evidence of ownership satisfactory to the BuyerSection 10.2(b) and Section 10.2(c) have been fulfilled;
(ii) The certificates required under Section 3.4(a)to SPAC, (b)the Registration Rights and Lock-Up Agreement, (e), duly executed by the Company Shareholders that are parties thereto and (i)HoldCo;
(iii) As required under Section 3.4(g)to SPAC, a certificate of good standing for each Subsidiary of a date within three (3) Business Days on behalf of the Company dated no more than thirty (30) days prior to the Closing Date issued by Date, prepared in a manner consistent and in accordance with the applicable agency requirements of Treasury Regulations Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in its jurisdiction of organization the Company is, or formation, except for Nogales, which certificate of good standing issued by has been during the applicable agency shall be applied for upon execution of this Agreement, shall be effective as relevant period specified in Section 897(c)(1)(A)(ii) of the date issued by Code, a “U.S. real property interest” within the applicable agency meaning of Section 897(c) of the Code, and shall be provided a form of notice to Buyer upon receipt. In the event Internal Revenue Service prepared in accordance with the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;provisions of Treasury Regulations Section 1.897-2(h)(2); and
(iv) Duly to SPAC, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Employment Agreement Amendment, duly executed resignations, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), by each of the consents, approvals, HoldCo (or one of its Subsidiaries) and waivers that are listed on Schedule 4.3▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents.
(b) At the Closing, the Buyer shall deliver, SPAC will deliver or cause to be delivered, to the Seller the following:
(i) The to the Company, a certificate signed by an officer of SPAC, dated the Closing Purchase Price Date, certifying that, to the knowledge and belief of such officer, the conditions specified in accordance with Section 2.3;10.3(a), Section 10.3(b) and Section 10.3(c) have been fulfilled; and
(ii) The certificates required to the Company, the Registration Rights and Lock-Up Agreement, duly executed by duly authorized representatives of SPAC and the Sponsor.
(c) On the Closing Date, concurrently with the Merger Effective Time, the Surviving Company shall pay or cause to be paid by wire transfer of immediately available funds, (i) all accrued transaction expenses of SPAC (which shall include any outstanding amounts under any Working Capital Loans) as set forth on a written statement to be delivered pursuant to Section 3.5(a), the Company not less than two (b), and (d);
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (32) Business Days prior to the Closing Date and (ii) all accrued and unpaid Transaction Expenses (“Unpaid Transaction Expenses”) as set forth on a written statement to be delivered to SPAC by or on behalf of the Company not less than two (2) Business Days prior to the Closing issued by Date, which shall include the applicable agency in respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided, that any Unpaid Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as Subsidiaries shall be paid to the Seller may reasonably request Company for further payment to give effect to this Agreement such employee, independent contractor, officer or director through the Transaction DocumentsCompany’s payroll.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by an executive officer of the Company, dated as of the Closing Date, certifying that the conditions specified in Section 3.4(h), certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in 9.2(a) and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than those Persons identified as the initial directors of the Surviving Corporation, in accordance with the provisions of Section 3.4(a2.6 and Section 7.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under to Acquiror, the Registration Rights Agreement, duly executed by each Company Stockholder party thereto;
(iv) to Acquiror, the Lock-Up Agreement, duly executed by the Key Holders; and
(v) to Acquiror, a duly executed certificate on behalf of the Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulations Sections 1.897-2(g), (h) and 1.1445-2(c)(3) and dated as of the Closing Date, certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(g897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the Internal Revenue Service prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).
(b) At the Closing, Acquiror will deliver or cause to be delivered:
(i) to the Exchange Agent, the Aggregate Merger Consideration for further distribution to the Company’s stockholders pursuant to Section 3.2;
(ii) to the Company, a certificate signed by an executive officer of good standing for each Subsidiary Acquiror, dated as of the Closing Date, certifying that the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(iii) to the Company, the Registration Rights Agreement, duly executed by a date within duly authorized representative of Acquiror;
(iv) to the Company, the Lock-Up Agreement, duly executed by a duly authorized representative of Acquiror;
(v) to the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other than those Persons identified as the initial directors of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Effective Time.
(c) On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, (i) all accrued Acquiror Transaction Expenses as set forth on a written statement to be delivered to the Company not less than three (3) Business Days of prior to the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignations, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consents, approvalsDate, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents.
(b) At Closing, the Buyer shall deliver, or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with Section 2.3;
(ii) The certificates required all accrued and unpaid Company Transaction Expenses (“Unpaid Transaction Expenses”) as set forth on a written statement to be delivered pursuant to Section 3.5(a), (b), and (d);
(iii) As provided in Section 3.5(e), a certificate Acquiror by or on behalf of good standing for the Buyer as of a date within Company not less than three (3) Business Days prior to the Closing Date, which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing and, if reasonably required by the Trustee, the certified Taxpayer Identification Numbers, of each payee; provided, that any Unpaid Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Closing issued by Company or any of its Subsidiaries shall be paid to the applicable agency in its jurisdiction of formation;Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll.
(ivd) The Transition Services Agreement; and
(v) Such other documents as Immediately prior to the Seller may reasonably request Closing, the Company and the Company Stockholders party thereto shall enter into the Employee Transactions pursuant to give effect to this Agreement or the Transaction DocumentsShare Repurchase Agreements.
Appears in 1 contract
Sources: Merger Agreement (One)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(c) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued Registration Rights Agreement, duly executed by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesRequisite Company Equityholders;
(iv) Duly to Acquiror, each Lock-Up Agreement, duly executed resignationsby the Major Company Equityholders or the Other Company Equityholders, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f)applicable;
(v) The Transition Services Agreementto Acquiror, evidence that all Affiliate Agreements (other than those set forth on Section 6.4 of the Company Disclosure Letter) have been terminated or settled at or prior to the Closing without further liability to Acquiror, the Company or any of the Company’s Subsidiaries;
(vi) As provided in Section 3.4(c)to Acquiror, each a copy of the consents, approvals, Restated Certificate duly adopted pursuant to the Written Consent and waivers that are listed on Schedule 4.3filed with the Delaware Secretary of State;
(vii) A duly executed to Acquiror, a certificate of non-foreign status on behalf of the SellerCompany, substantially prepared in a manner consistent and in accordance with the requirements of Treasury Regulation Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the sample certification set forth IRS prepared in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed accordance with the Closing and be entitled to withhold the amount required to be withheld pursuant to provisions of Treasury Regulations Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents1.897-2(h)(2).
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with to the Exchange Agent, the Aggregate Merger Consideration for further distribution to the Company’s equityholders pursuant to Section 2.33.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement, duly executed by duly authorized representatives of good standing for Acquiror and the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;Class B Holders; and
(iv) The Transition Services Agreement; andto the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Effective Time.
(vc) Such other documents On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, (i) all Acquiror Transaction Expenses as set forth on a written statement to be delivered to the Seller may reasonably request Company not less than two (2) Business Days prior to give effect the Closing Date and (ii) all Company Transaction Expenses as set forth on a written statement to this Agreement be delivered to Acquiror by or on behalf of the Company not less than two (2) Business Days prior to the Closing Date, in each case of clauses (i) and (ii), which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided, that any Company Transaction DocumentsExpenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(c) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the managers of the Company (other than any such Persons identified as initial managers of the Surviving Company, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate duly executed copies of good standing for each Subsidiary of a date within three (3) Business Days documentation reasonably necessary to evidence the adoption and implementation of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesIncentive Plan;
(iv) Duly to Acquiror, duly executed resignations, effective as copies of each of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);Precedent Transaction Agreements to which the Company is a party; and
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c)to Acquiror, each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 from the Company Equityholder and each applicable Company Minority Equityholder certifying that such Person is a “United States person” as defined in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ixSection 7701(a)(30) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsCode.
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The to the Company Equityholder, the Closing Purchase Price in accordance with Section 2.3Merger Consideration;
(ii) The certificates required to be delivered pursuant each of the Company Minority Equityholders, the applicable portion of the Minority Merger Consideration payable to such Company Minority Equityholder as set forth in Section 3.5(a), (b), and (d)2.1 of the Company Disclosure Letter;
(iii) As provided in Section 3.5(e)to the Company, a certificate duly executed copies of good standing for documentation reasonably necessary to evidence the Buyer as of a date within three (3) Business Days adoption and implementation of the Closing issued by the applicable agency in its jurisdiction of formationIncentive Plan;
(iv) The Transition Services Agreementto the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a), Section 9.3(b) and Section 9.3(c) have been fulfilled; and
(v) Such to the Company, the written resignations of all of the applicable managers, directors and officers of Acquiror and ▇▇▇▇▇▇ Sub (other documents than those Persons identified as the Seller may reasonably request initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.5), effective as of the Effective Time.
(c) At the Closing, unless other arrangements for Unpaid Transaction Expenses are mutually agreed by the Acquiror and the Company, Acquiror shall pay or cause to give effect be paid by wire transfer of immediately available funds, (i) all accrued transaction expenses of Acquiror and those incurred, accrued, paid or payable by Acquiror’s Affiliates on Acquiror’s behalf (which shall include any outstanding amounts under any Working Capital Loans) as set forth on a written statement to this Agreement be delivered to the Company not less than two (2) Business Days prior to the Closing Date and (ii) all accrued and unpaid Transaction Expenses (“Unpaid Transaction Expenses”) as set forth on a written statement to be delivered to Acquiror by or on behalf of the Company not less than two (2) Business Days prior to the Closing Date, which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided, that any Unpaid Transaction DocumentsExpenses due to current or former employees, independent contractors, officers, or managers of the Company shall be paid to the Company for further payment to such employee, independent contractor, officer or manager through the Company’s payroll.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Welsbach Technology Metals Acquisition Corp.)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Parent, a certificate signed by Section 3.4(h)an executive officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 7.2(a), other customary evidence of ownership satisfactory to the BuyerSection 7.2(b) and Section 7.2(c) have been fulfilled;
(ii) The certificates required under to Parent, the written resignations of all of the directors of the Company (other than those Persons identified as the initial directors of the Surviving Corporation, in accordance with the provisions of Section 3.4(a2.6 and Section 6.12), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Parent, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued Investor Rights Agreement, duly executed by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency Company and shall be provided to Buyer upon receipt. In the event the Closing Date each Company Stockholder that is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesKey Holder;
(iv) Duly executed resignationsto Parent, effective as evidence that the Affiliate Agreements set forth on Section 6.14 of the ClosingCompany Disclosure Letter have been terminated or settled at or prior to the Closing without further liability to, or obligation of, Parent, the Company or any of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);the Company’s Subsidiaries; and
(v) The Transition Services Agreement;
to Parent, a certificate on behalf of the Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulation Sections 1.897-2(g), (vih) As provided and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(c), each 897(c)(1)(A)(ii) of the consentsCode, approvalsa “U.S. real property interest” within the meaning of Section 897(c) of the Code, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the a form of notice to the sample certification set forth Internal Revenue Service prepared in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed accordance with the Closing and be entitled to withhold the amount required to be withheld pursuant to provisions of Treasury Regulations Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents1.897-2(h)(2).
(b) At the Closing, the Buyer shall deliver, Parent will deliver or cause to be delivered, to the Seller the following:
(i) The to the Exchange Agent, the Aggregate Closing Purchase Price in accordance with Consideration for further distribution to the Company Stockholders pursuant to Section 2.3;3.2.
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an executive officer of Parent, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 7.3(a) and (d)Section 7.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Investor Rights Agreement, duly executed by duly authorized representatives of good standing for Parent and the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formationSponsor;
(iv) The Transition Services to the Company, the Lock-Up Agreement, duly executed by a duly authorized representative of Parent; and
(v) Such to the Company, the written resignations of all of the directors and officers of Parent and Merger Sub (other documents than those Persons identified as the Seller initial directors and officers, respectively, of Parent after the Effective Time, in accordance with the provisions of Section 2.6 and Section 6.12), effective as of the Effective Time.
(c) No sooner than five (5) or later than two (2) days prior to the Closing Date, the Company shall deliver to Parent a certificate duly executed by an authorized officer of the Company on behalf of the Company (the “Company Closing Statement”) setting forth (i) a statement of (x) the Company’s calculation of the Adjustment Amount and (y) the aggregate accrued and unpaid Company Transaction Expenses as of immediately prior to the Effective Time (the “Unpaid Company Expenses”), which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing and, if reasonably required by the Trustee, the certified Taxpayer Identification Numbers, of each payee. Promptly following delivery of the Parent Closing Statement (and in no event later than one (1) day prior to the Closing Date), the Company shall deliver to Parent a schedule setting forth the Aggregate Closing Consideration payable to the Company Stockholders (the “Payment Spreadsheet”). The calculation and allocation of the Aggregate Closing Consideration set forth on the Payment Spreadsheet, as it may reasonably request be amended pursuant to give effect Section 2.4(e), shall be binding on all parties and Parent shall be entitled to this result fully on the allocation of the Aggregate Closing Consideration set forth on the Payment Spreadsheet.
(d) No sooner than five (5) or later than (2) days prior to the Closing Date, Parent shall deliver to the Company a certificate duly executed by an authorized officer of Parent on behalf of Parent (the “Parent Closing Statement” and, together with the Company Closing Statement, the “Closing Statements”), setting forth a statement of (i) Parent’s calculation of the Available Parent Cash, the Additional Parent Cash, the Parent Stockholder Redemption Amount, the Sponsor Backstop Amount, the Excess Amount (as defined in the Sponsor Support Agreement), the Expenses Excess Amount (as defined in the Sponsor Support Agreement), (ii) Parent’s calculation of the number of Subject Shares (as defined in the Sponsor Support Agreement) or Subject Warrants (as defined in the Sponsor Support Agreement) that are vested or forfeited in connection with the Closing pursuant to Section 1.9 of the Sponsor Support Agreement and the allocation of such vesting or forfeiture among the Sponsor Parties (as defined in the Sponsor Support Agreement) and (iii) the aggregate accrued and unpaid Parent Transaction DocumentsExpenses as of immediately prior to the Effective Time (the “Unpaid Parent Expenses” and, together with the Unpaid Company Expenses, the “Unpaid Transaction Expenses”). On the Closing Date, Parent shall pay or cause to be paid, by wire transfer of immediately available funds, the Unpaid Transaction Expenses set forth on the Closing Statements; provided, that any Unpaid Company Expenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such Persons through the Company’s payroll.
(e) Each of the Company and Parent shall (i) provide the other party and its representatives with reasonable access to the relevant books, records and finance personnel of such party to enable the other party and its representatives to review and analyze the amounts set forth on the Closing Statements and the Payment Spreadsheet, and (ii) make such amendments to the Closing Statements and the Payment Spreadsheet as the parties may mutually and in good faith agree.
Appears in 1 contract
Sources: Business Combination Agreement (Nebula Caravel Acquisition Corp.)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Members will deliver or will cause to be delivered, delivered to the Buyer each of the followingAcquiror:
(i) As required a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(c) have been fulfilled;
(ii) The certificates required under the written resignations of all of the directors of the Company (other than those Persons identified as the directors of the Company, in accordance with Section 3.4(a2.5), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)the Registration Rights Agreement, duly executed by a certificate of good standing for each Subsidiary of a date within three (3) Business Days duly authorized representative of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as Company and each of the date issued by Members set forth in Section 2.3(a)(ii) of the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesMember Disclosure Letter;
(iv) Duly the Lock-Up Agreements, duly executed resignationsby the Lock-Up Members, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in accordance with Section 3.4(f)6.7;
(v) The Transition Services Agreementthe amended and restated limited partnership agreement of Acquiror LP in a form to be agreed upon by the parties and with the terms set forth on Exhibit D hereto (with such changes as may be agreed in writing by Acquiror and the Company) (the “Amended and Restated Waldencast Partners LP Agreement “), duly executed by the Members, in their capacity as limited partners of Acquiror LP;
(vi) As provided in Section 3.4(c)duly executed instruments of transfer, and for each of the consentssuch Members that has a spouse, approvalsa spousal consent, and waivers that are listed on Schedule 4.3;
any other documents necessary to transfer title to the Membership Units to the Purchasers (vii) A duly executed certificate of non-foreign status of the Sellerin each case, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the BuyerPurchasers); provided that such instruments of transfer shall represent, in the aggregate, all (100%) of the issued and any other Tax forms as may be reasonably requested by outstanding Membership Units of the BuyerCompany;
(ixvii) All certificates evidencing the capital stockwith respect to each Member, quotas and other equity interests of each (i) a properly executed IRS Form W-9 dated as of the Subsidiaries;
Closing Date, or (xii) The IP Releasea properly executed applicable IRS Form W-8 dated as of the Closing Date; and
(xiviii) Such other documents as a duly executed certificate on behalf of the Buyer may reasonably request to give effect to this Agreement or Company, prepared in a manner consistent with and in accordance with the Transaction Documentsrequirements of Treasury Regulation Section 1.1445-11T(d)(2)(i).
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, delivered to the Seller the following:Company (unless otherwise set forth below):
(i) The Closing Purchase Price in accordance with Section 2.3to the Paying Agent, the Milk Cash Consideration and the Domesticated Acquiror Non-Economic Common Stock;
(ii) The certificates required a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to be delivered pursuant to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)the Registration Rights Agreement, a certificate duly executed by duly authorized representatives of good standing for Acquiror and the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;Sponsor; and
(iv) The Transition Services the Amended and Restated Waldencast Partners LP Agreement; and, duly executed by Acquiror and Holdco Purchaser, in its capacity as general partner of Acquiror LP.
(vc) Such other documents On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, (i) all accrued and unpaid Acquiror Transaction Expenses (including amounts owed under outstanding Working Capital Loans) as set forth on a written statement to be delivered to the Seller may reasonably request Company not less than two (2) Business Days prior to give effect the Closing Date and (ii) all accrued and unpaid Company Transaction Expenses as set forth on a written statement to this Agreement be delivered to Acquiror by or on behalf of the Company not less than two (2) Business Days prior to the Closing Date, which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided that any Company Transaction DocumentsExpenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll.
(d) Not less than two (2) Business Days prior to the Closing Date, (i) Acquiror shall deliver to the Company a good faith estimate of the expected cash and cash equivalents of Acquiror and each of its Subsidiaries, in each case, as of the Closing and (ii) the Company shall deliver to each of Acquiror and Obagi a good faith estimate of the expected cash and cash equivalents of the Company and each of its Subsidiaries, in each case, as of the Closing.
Appears in 1 contract
Sources: Equity Purchase Agreement (Waldencast Acquisition Corp.)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required by to the Exchange Agent, the number of Company Class A Ordinary Shares to be paid in respect of the SPAC Ordinary Shares in accordance with Section 3.4(h2.7(a), certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and for further distribution to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the BuyerSPAC Shareholders;
(ii) The certificates required under a certificate signed by an authorized officer of the Company, dated as of the Closing Date, certifying that, to the knowledge and belief of such authorized officer, the conditions specified in Section 3.4(a6.3(a), (b), (e), c) and (i)e) have been satisfied;
(iii) As required under Section 3.4(g), a certificate of good standing for duly executed counterparts to each Subsidiary of a date within three (3) Business Days of the Closing Date issued Transaction Documents to be entered into by the applicable agency in its jurisdiction of organization Company and Merger Sub, the Shareholders, or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesKey Personnel;
(iv) Duly executed resignations, effective as copies of certified resolutions approved and actions taken by each of Company’s and M▇▇▇▇▇ Sub’s sole directors and shareholders in connection with the Closing, approval of each officer, director this Agreement and manager of each Subsidiary as provided in Section 3.4(f)the Transactions;
(v) The Transition Services Agreement;all other documents, instruments or certificates required to be delivered by the Company at or prior to the Closing pursuant to Section 6.3; and
(vi) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer such other documents or certificates as shall be entitled to proceed with reasonably determined by the Closing SPAC and be entitled to withhold the amount required its legal counsel to be withheld pursuant required in order to Section 1445 of consummate the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsTransactions.
(b) At the Closing, the Buyer shall deliver, SPAC will deliver or cause to be delivered, to the Seller the following:
(i) The a certificate signed by an authorized officer of the SPAC, dated as of the Closing Purchase Price Date, certifying that, to the knowledge and belief of such authorized officer, the conditions specified in accordance with Section 2.3;
(ii6.1(f) The certificates required to be delivered pursuant to and Section 3.5(a6.2(a), (b), (c) and (d)e) have been satisfied;
(ii) the Transaction Documents to be entered into by the SPAC and the Sponsor, as applicable, duly executed by a duly authorized representative of the SPAC and the Sponsor;
(iii) As provided the written resignation letters of all of the directors and officers of the SPAC that are not remaining on the board of directors of the SPAC (the “SPAC Board”) after the Effective Time, in accordance with the provisions of Section 3.5(e1.8(a)), a certificate of good standing for the Buyer effective as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formationEffective Time;
(iv) The Transition Services Agreementcopies of certified resolutions and actions taken by the SPAC Board and the SPAC Shareholders in connection with the approval of this Agreement and the Transactions;
(v) all other documents, instruments or certificates required to be delivered by the SPAC at or prior to the Closing pursuant to Section 6.2; and
(vvi) Such such other documents or certificates as shall be reasonably determined by the Seller may reasonably request Company and its legal counsel to give effect be required in order to this Agreement or consummate the Transaction DocumentsTransactions.
Appears in 1 contract
Sources: Agreement and Plan of Merger (TMT Acquisition Corp.)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an authorized officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such authorized officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(c) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued Registration Rights Agreement, duly executed by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by Requisite Company Stockholders who have elected to execute the applicable agency shall be applied for upon execution of this Registration Rights Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignationsto Acquiror, effective as a certificate on behalf of the ClosingCompany, prepared in a manner consistent and in accordance with the requirements of each officerTreasury Regulations Sections 1.897-2(g), director (h) and manager of each Subsidiary as provided 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(f897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the Internal Revenue Service prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);, together with written authorization for Acquiror to deliver such documentation to the Internal Revenue Service on behalf of the Company after the Closing; and
(v) The Transition Services Agreement;
(vi) As provided to Acquiror, customary payoff letters in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable satisfactory to Acquiror from the holders of Existing Indebtedness or the agents representing the foregoing (the “Existing Lenders”) that is required to be repaid at the Closing (the “Payoff Letters”) (A) providing the instructions and total amounts for the payment in full of such Existing Indebtedness, together with interest, premiums, penalties, make-whole payments, breakage costs and other fees and expenses (if any) that are required to be paid by the Company as a result of the repayment in full on the Closing Date of such Existing Indebtedness (the “Payoff Amount”), by wire transfer of immediately available funds in accordance with the wire transfer instructions set forth in such Payoff Letters, (B) providing for the automatic and irrevocable release, upon receipt of the Payoff Amount, of (1) all Liens over the properties and assets (including all Company Intellectual Property) of the Company and its Subsidiaries securing obligations under such Existing Indebtedness and (2) any related guarantees and (C) providing that such Existing Indebtedness shall be repaid, discharged and satisfied in full upon receipt of the Payoff Amount, in each case, subject to the Buyerapplicable provisions and terms that, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each terms of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documentsapplicable definitive documentation, survive repayment of such Existing Indebtedness.
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price to the Exchange Agent, that portion of the Aggregate Merger Consideration to be paid in respect of shares of Company Common Stock in accordance with Section 2.33.1(a) (as set forth on the Allocation Schedule), for further distribution to such holders pursuant to Section 3.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an authorized officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such authorized officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement, duly executed by duly authorized representatives of good standing for Acquiror and the Buyer as Sponsor and the independent directors of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;Acquiror; and
(iv) The Transition Services Agreement; andto the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.5), effective as of the Effective Time.
(vc) Such other documents On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, (i) all accrued transaction expenses of Acquiror and those incurred, accrued, paid or payable by Acquiror’s Affiliates on Acquiror’s behalf (which shall include any outstanding amounts under any Working Capital Loans) as set forth on a written statement to be delivered to the Seller may reasonably request Company not less than two (2) Business Days prior to give effect the Closing Date, (ii) the Payoff Amount pursuant to this Agreement the instructions set forth in the Payoff Letters and (iii) all accrued and unpaid Transaction Expenses as set forth on a written statement to be delivered to Acquiror by or on behalf of the Company not less than two (2) Business Days prior to the Closing Date (“Unpaid Transaction DocumentsExpenses”), which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided, that any Unpaid Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll or accounts payable, as applicable.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller Sellers shall deliver, deliver (or cause to be delivered, ) to the Buyer each of the followingPurchaser or its designee:
(i) As required by Section 3.4(h)(A) stock certificate(s) representing the Shares, certificates evidencing the Stock duly endorsed and (B) a stock power, in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership a form satisfactory to the BuyerPurchaser covering the Shares, with all stock transfer Taxes, if any, paid for in full;
(ii) The certificates required under Section 3.4(a), (b), (e), and (i)a certificate of good standing with respect to the Company issued by the State of Texas;
(iii) As required under Section 3.4(g), a certificate of good standing for each Subsidiary of a date within three (3) Business Days receipt duly executed by the Sellers evidencing the receipt of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective Purchase Price (as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogalesdefined below);
(iv) Duly a counterpart of this Agreement, duly executed resignations, effective as of by the Closing, of each officer, director Sellers and manager of each Subsidiary as provided in Section 3.4(f)the Company;
(v) The Transition Services an assignment of the Lease Agreement, duly executed by Healthcare Reit, Inc.;
(vi) As provided in Section 3.4(c), each certified copies of the consents, approvals, resolutions of the Board of Directors of the Company and waivers that are listed on Schedule 4.3the stockholders of the Company authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby;
(vii) A duly executed certificate of non-foreign status all consents, authorizations and approvals set forth on Schedule 2.5 (including, without limitation, approval of the Seller, substantially in the form Texas State Board of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”Pharmacy); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in if not owned by the Company, Sellers and their Affiliates granting to Purchaser and its Affiliates a form perpetual, fully paid and substance reasonably acceptable exclusive license to use the “Central A▇▇▇▇ Pharmacy” name and related marks and logos whether registered or unregistered, if any, for commercial purposes related to the Buyer, and any other Tax forms as may be reasonably requested by the Buyerhealthcare industry;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each ISO No. 7 certification of the SubsidiariesCompany’s cleanroom structure and environment, on terms satisfactory to Purchaser;
(x) The IP Releaseissuance of a license to conduct sterile compounding at the present facility located at 1▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, by Texas State Board of Pharmacy;
(xi) an employment letter or agreement executed by M▇. ▇▇▇▇▇▇ agreeing to maintain his employment with Purchaser up to two (2) weeks after Closing, and to further take all actions necessary to cause him to be substituted as the pharmacist-in-charge;
(xii) a certificate, dated as of the Closing Date, duly executed by an executive officer of the Company, certifying that true and complete copies of the Company’s Fundamental Documents, as in effect on the Closing Date, are attached to such certificate and further certifying that all of the representations and warranties of the Sellers set forth in ARTICLE II hereof are true and correct in all material respects;
(xiii) evidence satisfactory to the Purchaser with respect to the resignation of all directors (or persons in similar positions) of the Company; and
(xixiv) Such other documents a certificate from each Seller, dated as of the Buyer may Closing Date, prepared in accordance with Treasury Regulation Section 1.1445-2(b)(2) and in a form reasonably request acceptable to give effect to this Agreement or the Transaction DocumentsPurchaser, certifying each Seller’s non-foreign status.
(b) At the Closing, the Buyer Purchaser shall deliver, deliver (or cause to be delivered, ) to the Seller the followingSellers:
(i) The Closing Purchase Price in accordance with Section 2.3;a counterpart of this Agreement, duly executed by the Purchaser; and
(ii) The certificates required a counterpart to be delivered pursuant to Section 3.5(a)the Lease Agreement, (b), and (d);
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (3) Business Days of the Closing issued duly executed by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction DocumentsPurchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement (Imprimis Pharmaceuticals, Inc.)
Closing Deliverables. (a) At the Closing, the Seller Company shall deliver, or cause to be delivered, deliver to the Buyer each of the followingInvestor:
(i) As required True and correct copies of written resolutions, or minutes of a meeting, of the Board, approving and adopting in all respects the execution, delivery and performance by Section 3.4(hthe Company of this Agreement and the transactions contemplated hereby, including, among others, (i) authorizing the issuance and sale of the Purchased Shares against payment of the purchase price therefor and the grant of the Mutual Option and the issuance of Ordinary Shares upon the exercise of the Mutual Option; (ii) reserving a sufficient number of Ordinary Shares to be issued upon exercise of the Mutual Option and (iii) the approval of the execution, delivery and performance by the Company of all agreements contemplated herein to which the Company is party and any agreements, instruments or documents ancillary thereto; all in the form attached hereto as Schedule 1.4(a)(i), certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyer;
(ii) The certificates required under Section 3.4(a)True and correct copies of written resolutions, (b)or minutes of meeting, (e)of the Company’s shareholders approving the increase of the authorized share capital of the Company, and (iin the form attached hereto as Schedule 1.4(a)(ii);
(iii) As required under Section 3.4(g), a certificate of good standing for each Subsidiary of a date within three (3) Business Days D▇▇▇ executed share certificates representing the respective Purchased Shares issued to the Investor at the Closing in the name of the Closing Date issued by Investor, in the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective form attached hereto as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesSchedule 1.4(a)(iii);
(iv) Duly executed resignations, effective as A copy of the Closingregister of shareholders of the Company, certified by an executive officer of each officerthe Company and prepared in accordance with Section 130 of the Companies Law, director and manager 5759–1999, as amended (the “Companies Law”), in which the Purchased Shares issued at the Closing are registered in the name of each Subsidiary the Investor, in the form attached hereto as provided in Section 3.4(fSchedule 1.4(a)(iv);; and
(v) The Transition Services Agreement;
Reseller Agreement and the Technology Cooperation Agreement (vithe “Commercial Agreements”) As provided between the Company and Investor, in Section 3.4(c)the forms attached hereto as Exhibit B and Exhibit C, each of the consentsrespectively, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsCompany.
(b) At the Closing, the Buyer Investor shall deliver, or cause to be delivered, deliver to the Seller the followingCompany:
(i) The Closing Purchase Price in accordance with Any identification documents required for the purpose of making the filings required under Section 2.36.1 which have been requested by the Company or its counsel prior to Closing;
(ii) The certificates required Evidence that the necessary corporate approvals on behalf of Investor to be delivered pursuant to Section 3.5(a)approve the transactions contemplated hereby, including the issuance of the Consideration Shares and the grant of the Mutual Option, have been duly obtained; and
(b), and (d);c) Within 10 days of the Closing,
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (3) Business Days of Investor shall deliver to the Closing issued by Company book entry statements reflecting the applicable agency in its jurisdiction of formation;Consideration Shares
(iv) The Transition Services Agreement; and
Investor and the Company shall each have duly executed and delivered to the other the Reseller Agreement and the Technology Cooperation Agreement (v) Such other documents the “Commercial Agreements”), substantially in the forms attached hereto as Exhibit B and Exhibit C, respectively, with such revisions as the Seller may reasonably request to give effect to this Agreement or the Transaction Documentsparties shall agree to.
Appears in 1 contract
Sources: Ordinary Share Purchase Agreement (World Health Energy Holdings, Inc.)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Section 9.2(a), other customary evidence of ownership satisfactory to the BuyerSection 9.2(b) and Section 9.2(c) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued Registration Rights Agreement, duly executed by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by Major Company Stockholders who have elected to execute the applicable agency shall be applied for upon execution of this Registration Rights Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;; and
(iv) Duly executed resignations(1) an original signed statement from the Company, effective that the Company is not, and has not been at any time during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States real property holding corporation”, as defined in Section 897(c)(2) of the Code, conforming to the requirements of Treasury Regulations Section 1.1445-2(c)(3) and 1.897-2(h) and reasonably satisfactory to Acquiror, and (2) an original signed notice to be delivered to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2), together with written authorization for Acquiror to deliver such notice to the IRS on behalf of the Company following the Closing, each dated as of the ClosingClosing Date, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each duly executed by an authorized officer of the consents, approvalsCompany, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable satisfactory to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsAcquiror.
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with to the Exchange Agent, the Aggregate Merger Consideration for further distribution to the Company’s stockholders pursuant to Section 2.33.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement, duly executed by duly authorized representatives of good standing for Acquiror and the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;Sponsor; and
(iv) The Transition Services Agreement; andto the Company, the written resignations of all of the directors and officers of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Effective Time.
(vc) Such other documents At the Closing, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, (i) all accrued and unpaid transaction expenses of Acquiror and those incurred, accrued, paid or payable by Acquiror’s Affiliates on Acquiror’s behalf which shall include, without duplication, (x) Indebtedness of Acquiror permitted by Section 7.5(a)(vi), but for the avoidance of doubt excluding any additional PIPE Investments pursuant to Section 7.2(c), (whether or not Indebtedness or discounts), (y) out-of-pocket and unpaid legal fees, costs and expenses incurred by Acquiror (whether or not billed or accrued for) as a result of or in connection with the Seller may reasonably request negotiation, documentation and consummation of the transactions contemplated hereby, and (z) any unpaid fees incurred by Acquiror or Sponsor in connection with the initial public offering of Acquiror (and partial exercise of its over-allotment option in connection therewith) and owed to give effect Chardan Capital Markets, LLC or fees incurred by Acquiror or Sponsor in connection with the PIPE Investment, in each case as set forth on a written statement to be delivered to the Company not less than two (2) Business Days prior to the Closing Date (the amounts in this Agreement clause (i), the “Unpaid Acquiror Expenses”) and (ii) all accrued and unpaid Company Transaction Expenses as set forth on a written statement to be delivered to Acquiror by or on behalf of the Company not less than two (2) Business Days prior to the Closing Date (“Unpaid Company Transaction DocumentsExpenses”), which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided, that any Unpaid Company Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (Welsbach Technology Metals Acquisition Corp.)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificatedconditions specified in Sections 10.2(a), other customary evidence of ownership satisfactory to the Buyer10.2(b) and 10.2(c) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as the initial directors of the Surviving Company, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued Registration Rights Agreement, duly executed by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by Major Company Equityholders who have elected to execute the applicable agency shall be applied for upon execution of this Registration Rights Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignationsto Acquiror, effective as evidence that all Affiliate Agreements (other than those set forth on Section 7.4 of the ClosingCompany Disclosure Letter) have been terminated or settled at or prior to the Closing without further liability to Acquiror, the Company or any of each officer, director and manager of each Subsidiary as provided in Section 3.4(f)the Company’s Subsidiaries;
(v) The Transition Services Agreement;
to Acquiror, with respect to each Blocker or Blocker Owner, as applicable, either (vii) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly an executed IRS Form W-9 from the Blocker Owner or (ii) a certificate on behalf of the Blocker, prepared in a manner consistent and in accordance with the requirements of Treasury Regulations Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in such Blocker is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form and substance reasonably acceptable of notice to the BuyerIRS prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2) with respect to each Blocker, and any other Tax forms provided that the Company shall deliver to the Blocker a certificate signed under penalties of perjury (in such form as may be reasonably requested by counsel to the Buyer;
(ixBlocker) All certificates evidencing certifying that the capital stock, quotas and other equity interests of each fair market value of the Subsidiaries;
Company’s U.S. real property interests does not equal or exceed fifty percent (x50%) The IP Releaseof the fair market value of (A) the Company’s U.S. real property interests, (B) the Company’s interests in real property located outside the United States, plus (C) any other of its assets which are used or held for use in a trade or business; and
(xivi) Such other documents as to Acquiror, a certificate on behalf of the Buyer may reasonably request Company conforming to give effect to this Agreement or the Transaction Documentsrequirements of Treasury Regulations Section 1.1445-11T(d)(2).
(b) At the Closing, each of the Buyer shall deliverBlockers will deliver or cause to be delivered to Acquiror, a certificate signed by an authorized Person of such Blocker, dated as of the Closing Date, certifying that, to the knowledge and belief of such authorized Person, the conditions specified in Section 10.2(a) solely with respect to the representations and warranties of such Blocker contained in this Agreement, and Section 10.2 (b) solely with respect to the covenants of such Blocker to be performed as of or prior to the Closing, have been fulfilled.
(c) At the Closing, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with to the Exchange Agent, the Distributable Aggregate Merger Consideration for further distribution to the Company Equityholders (excluding the Blockers) and each Blocker Owner pursuant to Section 2.33.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 10.3(a) and (d)Section 10.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement, duly executed by duly authorized representatives of good standing for Acquiror and the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;Sponsor; and
(iv) The Transition Services Agreement; andto the Company, the written resignations of all of the directors and officers of Acquiror, Merger Sub and the Blocker Merger Subs (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 8.6), effective as of the Effective Time.
(vd) Such other documents On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, (i) all accrued transaction expenses of Acquiror and its Affiliates (which shall include any outstanding amounts under any Working Capital Loans) as set forth on a written statement to be delivered to the Seller may reasonably request Company not less than two (2) Business Days prior to give effect the Closing Date and (ii) all accrued and unpaid Transaction Expenses (“Unpaid Transaction Expenses”) as set forth on a written statement to this Agreement be delivered to Acquiror by or on behalf of the Company not less than two (2) Business Days prior to the Closing Date, which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided, that any Unpaid Transaction DocumentsExpenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll.
(e) Each Blocker will deliver or cause to be delivered to Acquiror and the Company, the Registration Rights Agreement, duly executed by duly authorized representatives of such Blocker’s Blocker Owner.
Appears in 1 contract
Sources: Merger Agreement (Aspirational Consumer Lifestyle Corp.)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Acquiror will deliver or cause to be delivered, delivered to the Buyer each of the followingCompany:
(i) As required by Section 3.4(h)the written resignations of all of the directors and officers of A▇▇▇▇▇▇▇, certificates evidencing effective as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the BuyerEffective Time;
(ii) The certificates required under Section 3.4(a)a resolution of Acquiror appointing two directors who shall be designated by the Company, and one of which shall be an independent director within the meaning of Nasdaq Rule 5605(a)(2) of the Nasdaq Stock Market LLC (b), (e“Nasdaq”), and (i);two persons who constitute independent directors within the meaning of Rule 5605(a)(2) of the Nasdaq, and who are mutually acceptable to Acquiror and the Company as the directors of Acquiror, effective as of the Effective Time; and
(iii) As required under a certificate signed by an officer of Acquiror, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.4(g9.3(a), Section 9.3(b), (c) and (d) have been fulfilled.
(b) At the Closing, Acquiror will deliver or cause to be delivered to the Exchange Agent the Aggregate Exchange Consideration for further distribution to the Company Shareholders, pursuant to Section 3.2.
(c) Substantially concurrently with the Closing, the Acquiror shall pay or cause to be paid by wire transfer of immediately available funds (i) all accrued and unpaid Company Transaction Expenses; and (ii) all accrued and unpaid Acquiror Transaction Expenses, in each case as set forth on a certificate of good standing for each Subsidiary of a date within written statement to be delivered to the Acquiror not less than three (3) Business Days of prior to the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for NogalesDate, which certificate of good standing issued by shall include the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency respective amounts and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignations, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents.
(b) At Closing, the Buyer shall deliver, or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with Section 2.3;
(ii) The certificates required to be delivered pursuant to Section 3.5(a), (b), and (d);
(iii) As provided in Section 3.5(e), a certificate of good standing wire transfer instructions for the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction Documentspayment thereof.
Appears in 1 contract
Sources: Business Combination Agreement (Aura Fat Projects Acquisition Corp)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyerconditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for each Subsidiary of a date within three (3) Business Days the Registration Rights Agreement, duly executed by the stockholders of the Closing Date issued by Company who have elected to execute the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Registration Rights Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;; and
(iv) Duly executed resignationsto Acquiror, effective as a certificate on behalf of the ClosingCompany dated no more than thirty (30) days prior to the Closing Date, prepared in a manner consistent and in accordance with the requirements of each officerTreasury Regulations Sections 1.897-2(g), director (h) and manager of each Subsidiary as provided 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(f);
(v897(c)(1)(A)(ii) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consentsCode, approvalsa “U.S. real property interest” within the meaning of Section 897(c) of the Code, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the a form of notice to the sample certification set forth Internal Revenue Service prepared in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed accordance with the Closing and be entitled to withhold the amount required to be withheld pursuant to provisions of Treasury Regulations Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents1.897-2(h)(2).
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with to the Exchange Agent, the Aggregate Merger Consideration for further distribution to the Company’s stockholders pursuant to Section 2.3;3.2.
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate of good standing for the Buyer as of a date within three (3) Business Days on behalf of the Closing issued by Acquiror (following the applicable agency Domestication), prepared in its jurisdiction a manner consistent and in accordance with the requirements of formationTreasury Regulation Sections 1.897-2(g), (h) and 1.1445-2(c)(3) certifying that no interest in Acquiror is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the Internal Revenue Service prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(iv) The Transition Services to the Company, the Registration Rights Agreement, duly executed by duly authorized representatives of Acquiror and the Sponsor; and
(v) Such to the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other documents than those Persons identified as the Seller may reasonably request initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Effective Time.
(c) On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to give effect be paid by wire transfer of immediately available funds, (i) all accrued transaction expenses of Acquiror (which shall include any outstanding amounts under any Working Capital Loans) as set forth on a written statement to this Agreement be delivered to the Company not less than two (2) Business Days prior to the Closing Date and (ii) all accrued and unpaid Transaction Expenses (“Unpaid Transaction Expenses”) as set forth on a written statement to be delivered to Acquiror by or on behalf of the Company not less than two (2) Business Days prior to the Closing Date, which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices for the foregoing; provided, that any Unpaid Transaction DocumentsExpenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll.
Appears in 1 contract
Closing Deliverables. (a) At or prior to the Closing, the Seller Company shall deliver, deliver or cause to be delivered, delivered to the Buyer each of Investor the following:
(i) As required by Section 3.4(h), certificates evidencing the Stock duly endorsed in blank or accompanied by powers this Agreement duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to by the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the BuyerCompany;
(ii) The certificates required the Prospectus Supplement (as defined below) (which may be delivered in accordance with Rule 172 under Section 3.4(a), (b), (e), and (ithe Securities Act);
(iii) As required under Section 3.4(g), a certificate of good standing for each Subsidiary of a date within three (3) Business Days copy of the Closing Date issued by irrevocable instructions to the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as transfer agent of the date issued by Company instructing the applicable agency and shall be provided transfer agent to Buyer upon receipt. In deliver the event Shares to the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesInvestor;
(iv) Duly executed resignationsa certificate, effective dated as of the date of the Closing, duly executed and delivered by an authorized officer of each officerthe Company, director and manager of each Subsidiary as provided certifying that the condition to the Closing set forth in Section 3.4(f)3(a)(i) of this Agreement have been fulfilled;
(v) The Transition Services Agreementa certificate, dated as of the date of the Closing, duly executed and delivered by the Secretary of the Company, as to (A) resolutions of the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the transactions contemplated hereby; (B) the incumbency and signatures of the Company’s officers authorized to act with respect to this Agreement and (C) the full force and validity of the Company’s certificate of incorporation and bylaws, each as amended to date, and copies thereof;
(vi) As provided in Section 3.4(c), each a copy of a good standing certificate of the consentsCompany, approvals, and waivers that are listed on Schedule 4.3dated as of a date reasonably close to the date of the Closing;
(vii) A duly executed certificate a legal opinion of non-foreign status of the Seller, Company Counsel substantially in the form of reasonably acceptable to the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunderInvestor;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;Company’s wire instructions; and
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction DocumentsShares.
(b) At or prior to the Closing, the Buyer shall deliver, or cause to be delivered, Investor will deliver to the Seller the following:
Company (i) The Closing Purchase Price in accordance with Section 2.3;
this Agreement duly executed by the Investor and (ii) The certificates required to be delivered pursuant to Section 3.5(a), (b), and (d);
(iii) As provided in Section 3.5(e), a certificate of good standing for the Buyer as of a date within three (3) Business Days portion of the Closing issued by Purchase Price set forth opposite the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as the Seller may reasonably request to give effect to this Agreement or the Transaction DocumentsInvestor’s name on Exhibit A hereto.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the StockClosing Date, andcertifying that, to the extent knowledge and belief of such officer, the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyerconditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled;
(ii) The certificates required under to Acquiror, the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 3.4(a2.6), (b), (e), and (i)effective as of the Effective Time;
(iii) As required under Section 3.4(g)to Acquiror, a certificate of good standing for the Registration Rights Agreement and each Subsidiary of a date within three (3) Business Days Lock-Up Agreement, duly executed by each of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;Major Company Stockholders; and
(iv) Duly executed resignationsto Acquiror, effective as a certificate on behalf of the ClosingCompany, prepared in a manner consistent and in accordance with the requirements of each officerTreasury Regulation Sections 1.897-2(g), director (h) and manager of each Subsidiary as provided 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 3.4(f);
(v897(c)(1)(A)(ii) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consentsCode, approvalsa “U.S. real property interest” within the meaning of Section 897(c) of the Code, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the a form of notice to the sample certification set forth Internal Revenue Service prepared in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed accordance with the Closing and be entitled to withhold the amount required to be withheld pursuant to provisions of Treasury Regulations Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP Release; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents1.897-2(h)(2).
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with to the Exchange Agent, the Net Merger Consideration for further distribution to the Company’s stockholders pursuant to Section 2.33.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Company, a certificate the Registration Rights Agreement and each Lock-Up Agreement, duly executed by duly authorized representatives of good standing for Acquiror and the Buyer as of a date within three (3) Business Days Sponsor and each of the Closing issued by other parties listed on Schedule I of the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Sponsor Support Agreement; and
(viv) Such to the Company, the written resignations of all of the directors and officers of Acquiror and Merger Sub (other documents than those Persons identified as the Seller may reasonably request initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Effective Time.
(c) On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to give effect be paid by wire transfer of immediately available funds, (i) all accrued transaction expenses of Acquiror and those incurred, accrued, paid or payable by Acquiror’s Affiliates on Acquiror’s behalf (which shall include any and all outstanding amounts under any Working Capital Loans) as set forth on a written statement to this Agreement be delivered to the Company not less than two (2) Business Days prior to the Closing Date and (ii) all accrued and unpaid Transaction Expenses (“Unpaid Transaction Expenses”) as set forth on the Closing Statement; provided that any Unpaid Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Transaction DocumentsCompany or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (ACE Convergence Acquisition Corp.)
Closing Deliverables. (a) At the Closing, Inpixon or the Seller shall deliverCompany, as applicable, will deliver or cause to be delivered, to the Buyer each of the following:
(i) As required to Acquiror, a certificate signed by Section 3.4(h)an officer of the Company, certificates evidencing dated as of the Stock duly endorsed Closing Date, certifying that, (A) the Internal Reorganization and the Distribution have been completed in blank or accompanied by powers duly executed in blank or other duly executed instruments accordance with the terms of transfer as required in order to validly transfer title in the Ancillary Agreements and (B) to the Stockknowledge and belief of such officer, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyerconditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled;
(ii) The certificates required under Section 3.4(a)to Acquiror, (b), (e), and (i);
(iii) As required under Section 3.4(g), a certificate the written resignations of good standing for each Subsidiary of a date within three (3) Business Days all of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as directors of the date issued by Company (other than any such Persons identified as initial directors of the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1Surviving Corporation, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogales;
(iv) Duly executed resignationsin accordance with Section 2.6), effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP ReleaseEffective Time; and
(xiiii) Such other documents as to Acquiror, a certificate on behalf of the Buyer may reasonably request Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulation Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to give effect to this Agreement or the Transaction DocumentsIRS prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with to the Exchange Agent, the Aggregate Merger Consideration for further distribution to the Company’s stockholders pursuant to Section 2.33.2;
(ii) The certificates required to be delivered pursuant the Company, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d);Section 9.3(b) have been fulfilled; and
(iii) As provided to the Company, the written resignations of all of the directors and officers of A▇▇▇▇▇▇▇ and M▇▇▇▇▇ Sub (other than those Persons identified as the initial directors and officers, respectively, of Acquiror after the Effective Time, in accordance with the provisions of Section 3.5(e2.6 and Section 7.5), a certificate of good standing for the Buyer effective as of the Effective Time.
(c) On the Closing Date, concurrently with the Effective Time, Acquiror shall pay or cause to be paid by wire transfer of immediately available funds, (i) all accrued Transaction Expenses of Acquiror and those incurred, accrued, paid or payable by Acquiror’s Affiliates on Acquiror’s behalf (which shall include any outstanding amounts under any Working Capital Loans) as set forth on a date within three written statement to be delivered to the Company not less than two (32) Business Days prior to the Closing Date and (ii) all accrued and unpaid Company Transaction Expenses (“Unpaid Transaction Expenses”) as set forth on the Closing Statement; provided, that any Unpaid Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Closing issued Company or any of the Company Subsidiaries shall be paid or cause to be paid by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents as Acquiror to the Seller may reasonably request Company for further payment to give effect to this Agreement such employee, independent contractor, officer or director through the Transaction DocumentsCompany’s payroll.
Appears in 1 contract
Closing Deliverables. (a) At the Closing, the Seller Company shall deliver, deliver or cause to be delivered, delivered to the Buyer each of the followingPurchaser:
(i) As required by Section 3.4(h)copies of the Escrow Agreement and any other Transaction Documents to which the Company is a party that are to be entered into at Closing, certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer by the Company, the Shareholder Representative, the Paying Agent and the Escrow Agent as required in order to validly transfer title in and to the Stock, and, to the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the Buyerapplicable;
(ii) The certificates required under the officer’s certificate provided in Section 3.4(a), (b), (e), and (i6.3(h);
(iii) As required under Section 3.4(g)a secretary’s certificate, a certificate of good standing for each Subsidiary of a date within three (3) Business Days dated as of the Closing Date issued Date, duly executed by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as Secretary of the date issued by Company, attesting to: (A) the applicable agency incumbent officers of the Company; and shall be provided to Buyer upon receipt. In (B) the event resolutions of the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesBoard of Directors and the Company Shareholder Consent approving the Merger and the other Transactions;
(iv) Duly executed resignations, effective as good standing certificate for the Company in the Commonwealth of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f)Virginia;
(v) The Transition Services Agreementwritten resignations effective as of the Closing Date of all officers and members of the Boards of Directors of the Company;
(vi) As provided the Articles of Merger in Section 3.4(c)the form required by the VSCA, each of duly executed by the consents, approvals, and waivers that are listed on Schedule 4.3Company;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); provided, that if the Seller fails to provide a FIRPTA CertificateEstimated Closing Balance Sheet, the Buyer shall be entitled to proceed with schedule setting forth the Closing Estimated Merger Consideration provided for in Section 2.6(b)(ii)(B) and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunderPreliminary NWC Statement;
(viii) A duly executed IRS Form W-9 an affidavit, under penalties of perjury, stating that the Company is not and has not been a United States real property holding corporation, dated as of the Closing Date and in a form and substance required under Treasury Regulation § 1.897-2(h) and reasonably acceptable to the Buyer, and Purchaser so that the Purchaser is exempt from withholding any other Tax forms as may be reasonably requested by portion of the BuyerMerger Consideration under Section 1445 of the Code;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of Shareholder Representative Agreement signed by each of the SubsidiariesCompany Shareholders and the Shareholder Representative;
(x) The IP Releasethe Investor Rights Agreement in the form of Exhibit 2.7(a)(x) (the “Investor Rights Agreement”) signed by each Company Shareholder;
(xi) a Form of Election properly completed and signed from each Company Shareholder;
(xii) information regarding the Advisors to facilitate the payments set forth in Section 2.6(d)(iii); and
(xixiii) Such other documents as the Buyer may reasonably request any additional items required to give effect to this Agreement or the Transaction Documentsbe delivered at Closing under Section 6.3.
(b) At the Closing, the Buyer Purchaser shall deliver, deliver or cause to be delivered, delivered to the Seller the followingCompany:
(i) The Closing Purchase Price evidence reasonably satisfactory to the Company of each of the payments and deliveries described in accordance with Section 2.32.6(c) and Section 2.6(d) having been made as provided therein;
(ii) The certificates required the Escrow Agreement, the Investor Rights Agreement and any other Transaction Documents to which the Purchaser is a party that are to be delivered pursuant to Section 3.5(a)entered into at Closing, (b), and (d)duly executed by the Purchaser;
(iii) As the officer’s certificate provided in Section 3.5(e6.2(e), a certificate of good standing for the Buyer as of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreementa secretary’s certificate, dated as of the Closing Date, duly executed by the Secretary of the Purchaser, attesting to: (A) the incumbent officers of the Purchaser and Merger Sub; and (B) resolutions of the Board of Directors or similar governing body of the Purchaser and Merger Sub and the stockholders of Merger Sub and, if required under its Organizational Documents or any other Contract to which it is a party, the Purchaser, approving the Merger and the other Transactions; and
(v) Such other documents as the Seller may reasonably request any additional items required to give effect to this Agreement or the Transaction Documentsbe delivered at Closing under Section 6.2.
Appears in 1 contract
Sources: Merger Agreement (On Assignment Inc)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Company will have delivered or cause caused to be delivered, delivered to the Buyer each CNH all of the followingfollowing in form and substance satisfactory to CNH:
(i) As required by Section 3.4(h)a certificate of the secretary of the Company, certificates evidencing certifying (A) that a true, correct and complete copy of the Stock duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments certificate of transfer as required in order to validly transfer title in incorporation of the Company is attached, and to (B) that a true, correct and complete copy of the Stock, and, to bylaws of the extent the Stock Company is not certificated, other customary evidence of ownership satisfactory to the Buyerattached;
(ii) The certificates required under copies of the resolutions unanimously and duly adopted by the Company's board of directors, authorizing the execution, delivery and performance by the Company of this Agreement, and the consummation of all of the other transactions hereunder and thereunder, certified as of the Closing Date by the secretary of the Company;
(iii) a certificate dated as of the Closing Date from an officer of the Company and from each of the Stockholders stating that the conditions specified in Section 3.4(a5.2(a), (b), ) and (e), and (i);
(iiiSection 5.3(c) As required under Section 3.4(g), a certificate of good standing for each Subsidiary of a date within three (3) Business Days of the Closing Date issued by the applicable agency in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for Nogaleshave been fully satisfied;
(iv) Duly executed resignationsExchange and Settlement Agreements, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c), each of the consents, approvals, and waivers that are listed on Schedule 4.3;
(vii) A duly executed certificate of non-foreign status of the Seller, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”); providedthe attached Exhibit C, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested signed by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;
(x) The IP ReleaseMessrs. Derek Downs, Gregory Roy▇▇ ▇▇▇ ▇▇. Cin▇▇ ▇▇▇▇; and
(xi) Such other documents as the Buyer may reasonably request to give effect to this Agreement or the Transaction Documents.
(b) At ClosingA▇ ▇▇▇ ▇▇▇▇▇▇▇, the Buyer shall deliver, CNH will have delivered or cause caused to be delivered, delivered to the Seller Company and the followingStockholders each of the following in form and substance satisfactory to the Company and the Stockholders:
(i) The copies of the resolutions unanimously and duly adopted by the boards of directors of CNH and of XBRA, respectively, authorizing the execution, delivery and performance by CNH and XBRA of this Agreement, and the consummation of all of the other transactions hereunder and thereunder, certified as of the Closing Purchase Price in accordance with Section 2.3;Date by the secretary of CNH and XBRA, as applicable; and
(ii) The certificates required to be delivered pursuant to Section 3.5(a), (b), and (d);
(iii) As provided in Section 3.5(e), a certificate of existence and good standing for from the Buyer as Secretaries of State of the States of Texas and Delaware, each of a date within three (3) Business Days of the Closing issued by the applicable agency in its jurisdiction of formation;
(iv) The Transition Services Agreement; and
(v) Such other documents recent date, with respect to CNH and XBRA, as the Seller may reasonably request to give effect to this Agreement or the Transaction Documentsapplicable.
Appears in 1 contract
Sources: Merger Agreement (CNH Holdings Co)
Closing Deliverables. (a) At the Closing, the Seller shall deliver, Members and the Company will deliver or cause to be delivered, delivered to the Buyer each of the followingAcquiror:
(i) As required the Company A&R LLC Agreement, to be agreed upon by Section 3.4(h)the parties, certificates evidencing the Stock duly endorsed in blank or accompanied by powers duly executed by the Acquiror and the Members as post-Closing members of the Company, substantially in blank or other duly executed instruments of transfer the form attached hereto as required in order to validly transfer title in and to the Stock, andExhibit B, to effectuate the extent the Stock is not certificated, other customary evidence of ownership satisfactory to the BuyerRecapitalization;
(ii) The certificates required under Section 3.4(a)representing the Sold Units, (b)Additional Common Units and any other Company Common Units that Acquiror purchases at the Closing, (e), duly endorsed for transfer or accompanied by duly executed powers or other forms of assignment and (i)transfer;
(iii) As required under Section 3.4(g), a certificate signed by an officer of good standing for each Subsidiary of a date within three (3) Business Days the Company, dated as of the Closing Date issued by Date, certifying that, to the applicable agency knowledge and belief of such officer, the conditions specified in its jurisdiction of organization or formation, except for Nogales, which certificate of good standing issued by the applicable agency shall be applied for upon execution of this Agreement, shall be effective as of the date issued by the applicable agency Section 9.2(a) and shall be provided to Buyer upon receipt. In the event the Closing Date is extended past April 1, 2019, Seller shall use good faith efforts to obtain a reissued good standing certificate for NogalesSection 9.2(b) have been fulfilled;
(iv) Duly executed resignationsa certificate signed by each Member, dated as of the Closing Date, certifying that, to the knowledge and belief of such Member, the conditions specified in Section 9.2(b) and Section 9.2(c) have been fulfilled;
(v) the written resignations of all of the managers of the Company, effective as of the Closing, of each officer, director and manager of each Subsidiary as provided in Section 3.4(f);
(v) The Transition Services Agreement;
(vi) As provided in Section 3.4(c)the Registration Rights Agreement and each Lock-Up Agreement, duly executed by each of the consents, approvals, and waivers that are listed on Schedule 4.3Members;
(vii) A the Tax Receivable Agreement, to be agreed upon by the parties, duly executed by the Members and the Company;
(viii) with respect to each Member, (i) a properly executed IRS Form W-9 dated as of the Closing Date, or (ii) a properly executed applicable IRS Form W-8 dated as of the Closing Date;
(ix) a duly executed certificate of non-foreign status on behalf of the SellerCompany, substantially prepared in a manner consistent with and in accordance with the form requirements of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B) (a “FIRPTA Certificate”11T(d)(2)(i); provided, that if the Seller fails to provide a FIRPTA Certificate, the Buyer shall be entitled to proceed with the Closing and be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from any payment made hereunder;
(viii) A duly executed IRS Form W-9 in a form and substance reasonably acceptable to the Buyer, and any other Tax forms as may be reasonably requested by the Buyer;
(ix) All certificates evidencing the capital stock, quotas and other equity interests of each of the Subsidiaries;and
(x) The IP Release; and
(xi) Such any other agreements, instruments, and documents as the Buyer may reasonably request to give effect to which are required by other terms of this Agreement (or the Transaction Documentsreasonably requested by Acquiror) to be executed or delivered at Closing.
(b) At the Closing, the Buyer shall deliver, Acquiror will deliver or cause to be delivered, to the Seller the following:
(i) The Closing Purchase Price in accordance with Section 2.3to the Members, the Aggregate Cash Consideration;
(ii) The certificates required to be delivered pursuant the Members, a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 3.5(a), (b), 9.3(a) and (d)Section 9.3(b) have been fulfilled;
(iii) As provided in Section 3.5(e)to the Members, a certificate the Registration Rights Agreement and each Lock-Up Agreement, duly executed by duly authorized representatives of good standing for Acquiror and the Buyer as of a date within three (3) Business Days Sponsor and each of the Closing issued by other parties listed on Schedule I of the applicable agency in its jurisdiction of formationSponsor Support Agreement;
(iv) The Transition Services to the Members, the Tax Receivable Agreement, duly executed by ▇▇▇▇▇▇▇▇;
(v) to the Company, evidence of the filing with, and acceptance by the Office of the Secretary of State of the State of Delaware of the Acquiror Charter, to reflect, among other things, the issuance of Acquiror Class C Common Stock, with such rights and powers as granted therein;
(vi) to the Company, the Company Class C Common Stock pursuant to Section 2.3, to be further distributed to the Members;
(vii) to the Company, the Acquiror Bylaws; and
(vviii) Such to the Company, the written resignations of all of the directors and officers of ▇▇▇▇▇▇▇▇ (other documents than those Persons identified as the Seller may reasonably request initial directors and officers, respectively, of Acquiror after the Closing, in accordance with the provisions of Section 2.10 and Section 7.6), effective as of the Closing.
(c) Not less than twenty (20) Business Days prior to give effect the initial expected Closing Date, each Member shall provide prior written notice to this Agreement or Acquiror of the Transaction Documentsnumber of Sold Units it intends to sell to Acquiror at the Closing (which shall not exceed such Member’s Pro Rata Share of 12,000,000 Company Common Units). Such Election made by the Members will be recorded accordingly in Exhibit A. Each Member shall use reasonable best efforts to work with the Company and Acquiror to finalize Exhibit A twenty (20) Business Days prior to the Closing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Stratim Cloud Acquisition Corp.)