Closing Deliveries. Subject to the terms set forth herein: (a) At the Closing, the Seller will deliver, or cause to be delivered, to Buyer: (i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto; (ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies; (iii) each of the deliverables contemplated by Section 2.5(a); (iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2); (v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized; (vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and (vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement. (b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer: (i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and (ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement. (c) Buyer will: (i) at the Closing, deliver, or cause to be delivered, to the Seller: (A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D; (B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and (C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party; (ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following: (A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and (B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At or prior to the Closing, the Seller will deliver, or cause Sellers shall deliver to be delivered, to the Buyer:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoPurchased Assets;
(ii) written letters of resignationevidence that the Sellers have, effective as of at the ClosingSellers’ expense and without cost or other adverse consequence to the Buyer, from each of the members of the board of directors of the Acquired Companies;
sent all notices, made all filings and obtained all Consents (iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3except for Consents under Third Party Agreements) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS Orders required in accordance connection with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true execution and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, and or the consummation of the transactions contemplated hereby hereby;
(iii) all Ancillary Agreements to which any Seller is a party, dated the Closing Date and thereby, and that all duly executed by such resolutions are in full force and effect and are all Seller;
(iv) evidence of the resolutions adopted in connection acceptance of employment with the transactions contemplated hereby Buyer of at least ninety percent (90%) of the Identified Employees, including each of the individuals named by the Buyer in writing and therebydelivered to the Sellers on or prior to the date hereof;
(v) restrictive covenant and work made for hire agreements executed by each Transferred Employee in form and substance reasonably satisfactory to the Buyer;
(vi) an opinion of counsel to the Sellers, dated the Closing Date, substantially in the form of Exhibit A;
(vii) a certificate dated the Closing Date executed by the President or other authorized officer of each Seller certifying as to the satisfaction of each of the conditions set forth in Article VI substantially in the form of Exhibit B;
(viii) a certificate dated the Closing Date executed by the Secretary of each Seller certifying as to the director, stockholder and other resolutions authorizing the Transaction Documents substantially in the form of Exhibit C;
(ix) good standing certificates for each Seller dated within ten (10) days prior to the Closing Date from its jurisdiction of organization;
(x) evidence of the release of all Encumbrances on the Purchased Assets;
(xi) all documents obtained by the Sellers pursuant to Section 6.3; and
(viixii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other agreements, certificates, instruments and documents or instruments as the Buyer may reasonably requests and are reasonably necessary request in order to fully consummate and make effective the transactions contemplated by and carry out the purposes and intent of this Agreement.
(b) At or prior to the Closing, the Company willBuyer shall deliver to the Sellers:
(i) the Closing Payment by wire transfer to the Sellers’ Account;
(ii) all Ancillary Agreements to which the Buyer is a party, dated the Closing Date and duly executed by the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:;
(i) a certificate dated the Closing Date executed by the President or other authorized officer of the Secretary or an Assistant Secretary (or equivalent officer) Buyer certifying as to the satisfaction of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) conditions set forth in Article VII substantially in the form attached hereto as of Exhibit D;
(Biii) a certificate dated the Closing Date Payment executed by wire transfer the Secretary of immediately available funds the Buyer certifying as to the account designated by director, stockholder and other resolutions authorizing the Seller on Annex ATransaction Documents substantially in the form of Exhibit E; and
(Civ) duly executed counterparts such other agreements, certificates, instruments and documents as the Sellers may reasonably request in order to each fully consummate the transactions contemplated by and carry out the purposes and intent of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedulethis Agreement.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller Parties will deliverdeliver the documents and instruments that are set forth in this Section 2.6.
(a) Subject to the delivery of the items set forth in Section 2.6(b), at the Closing, Purchaser or cause Merger Sub, as applicable, will deliver to be delivered, to BuyerCompany (or such other Person as indicated below) all of the following:
(i) a stock certificate evidencing counterpart of the SharesStatement of Merger, duly endorsed in blank or accompanied executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoMerger Sub;
(ii) an invoice issued by each intended beneficiary of Transaction Expenses that sets forth (A) the amount required to pay in full all Transaction Expenses owed to such Person on the Closing Date and (B) the wire transfer instructions for the payment of such Transaction Expenses to such Person;
(iii) the written letters of resignationresignations, effective as of the ClosingClosing Date, from each of the members managers and officers of the board of directors of Purchaser Companies agreed upon by the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a)parties;
(iv) certification from evidence of the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated termination as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of agreements set forth on Section 897(c)(12.6(a)(iv) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)Purchaser Disclosure Schedule;
(v) a certificates of good standing certificate of Purchaser and Merger Sub, issued not earlier than ten (or its equivalent10) for each Business Days prior to the Closing Date by the Secretary of State of Nevada and the Acquired Companies from the secretary Idaho Secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedState, respectively;
(vi) a certificate of the Secretary or an Assistant Secretary secretary of Purchaser certifying as complete and accurate a copy of (or equivalent officerA) the resolutions of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller Purchaser’s Board authorizing the execution, delivery delivery, and performance of this Agreement and the any other Transaction Documents to which the Seller is a party, delivered by Purchaser hereunder and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all (B) the resolutions adopted in connection with the transactions contemplated hereby and thereby; and
of Purchaser’s Stockholders authorizing (vii1) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery delivery, and performance of this Agreement and any other Transaction Documents delivered by Purchaser hereunder, (2) Purchaser’s Rights Offering and the Amendment to the Articles, and (3) Purchaser’s Equity Incentive Plan;
(vii) a certificate of the secretary of Merger Sub certifying as complete and accurate a copy of (A) the resolutions of Sole Member and Manager of Merger Sub authorizing the execution, delivery, and performance of this Agreement and any other Transaction Documents delivered by Merger Sub hereunder, and (B) the Merger Sub Consent;
(viii) a closing certificate executed by Purchaser and Merger Sub to the effect that the conditions set forth in Section 6.1 have been satisfied, and that all documents to be executed and delivered by Purchaser and Merger Sub at the Closing, respectively, have been executed by duly authorized officers of Purchaser and Merger Sub, respectively;
(ix) copies of the other Transaction Documents to which Purchaser, Merger Sub, or the Company is Exchange Agent are a party, and the consummation of the transactions contemplated hereby and therebyexecuted by Parent, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the ClosingMerger, deliverSub, or cause to be deliveredthe Exchange Agent, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit Dapplicable;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller Sellers will deliver, deliver or cause to be delivered, delivered to Buyerthe Purchaser:
(i) a stock certificate evidencing an escrow agreement in the Shares, duly endorsed in blank or accompanied form of Exhibit C (the “Escrow Agreement”) executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe Sellers and the Sellers’ Representative;
(ii) written letters one or more bills of resignation, effective as sale in the form of Exhibit D (the Closing, from each “B▇▇▇ of Sale”) executed by the members of the board of directors of the Acquired CompaniesSellers;
(iii) each one or more assignment and assumption agreements in the form of Exhibit E (the deliverables contemplated “Assignment and Assumption Agreement”) executed by Section 2.5(a)the Sellers;
(iv) certification from for each parcel of Leased Real Property, an assignment of the Company Sellers’ rights under each lease agreement evidencing the Sellers’ interest in accordance with Treasury Regulations such Leased Real Property in the form of Exhibit F (collectively, the “Lease Assignments”) executed by the Sellers;
(v) assignments of all Purchased Intellectual Property in the forms of Exhibits G-1 through G-4 (collectively, the “IP Assignments”) executed by the Sellers;
(vi) a certificate, dated as of the Closing Date, executed by the Sellers confirming the satisfaction of the conditions specified in Sections 1.1445-2(c)(36.1(a) and 1.897-2(h6.1(b);
(vii) a noncompetition agreement in the form of Exhibit H executed by each of the Sellers and the Persons set forth on Schedule 2.9(a)(vii) (collectively, the “Noncompetition Agreements”);
(viii) copies of the Governmental Authorizations and consents required to be obtained as a condition to Closing pursuant to Section 6.1(c);
(ix) a certification in the form of Exhibit I executed by the Sellers stating, under penalty of perjury, the Sellers’ U.S. employer identification numbers and addresses and that each Seller is not a “foreign person” as defined in Section 1445 of the Code;
(x) a human resource agreement in the form of Exhibit J (the “Human Resources Agreement”) executed by the Sellers;
(xi) certificates in the form of Exhibit K of the secretary or comparable officer or manager of each Seller dated as of the Closing Date and signed attaching (A) such Seller’s certificate of formation and all amendments thereto, certified by an officer the Secretary of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body State of the jurisdiction under of such Seller’s organization not more than thirty days prior to the applicable Laws Closing Date, (B) such Seller’s operating agreement or other comparable governing document and all amendments thereto and (C) certificates of good standing of such Seller certified by the Secretary of State of the jurisdiction of such Seller’s organization and of each jurisdiction in which each of such Seller is qualified to do business as a foreign entity and issued not more than thirty days prior to the Acquired Companies is organized;
Closing Date; (viD) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by of the board of managers, members or directors or other comparable governing body of the such Seller authorizing the execution, delivery and performance of relating to this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement; and (E) incumbency and signatures of the officers or managers of the Seller executing this Agreement or any other agreement contemplated by this Agreement; and
(xii) a closing settlement statement (the “Closing Statement”) and receipt for the Initial Consideration in form reasonably satisfactory to the Purchaser.
(b) At the Closing, the Company will, and the Seller Purchaser will cause the Company and its Subsidiaries to, deliver, deliver or cause to be delivered to Buyerthe Sellers:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment Initial Consideration by wire transfer of immediately available funds to the single bank account designated by the Seller on Annex A; and
(C) duly executed counterparts TCG in writing to each of the Transaction Documents Purchaser, with such writing to which Buyer is a partybe delivered at least 24 hours prior to Closing;
(ii) paythe Escrow Agreement, or cause to be paidNon-Competition Agreement, on behalf Human Resources Agreement, and Closing Statement executed by the Purchaser;
(iii) the B▇▇▇(s) of the Seller or the Acquired CompaniesSale, the following:
Assignment and Assumption Agreement(s) and the other assignments, if any, under Section 2.9(a)(iv) and (Av) at that call for a signature by the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing DatePurchaser; and
(Biv) at a certificate, dated as of the ClosingClosing Date, executed by the Estimated Company Indebtedness by wire transfer Purchaser confirming the satisfaction of immediately available funds the conditions specified in the amounts Sections 6.2(a) and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule6.2(b).
Appears in 1 contract
Sources: Asset Purchase Agreement (Cash America International Inc)
Closing Deliveries. Subject to the terms set forth herein:
(a) At On or prior to the Closingdate hereof, Buyer shall have delivered the Seller will deliver, or cause following to be delivered, to BuyerSellers:
(i) a stock certificate evidencing A copy of any governmental filing, authorization or approval that is required for the Shares, duly endorsed in blank or accompanied consummation of the transactions contemplated hereby by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoBuyer;
(ii) written letters of resignation, effective as of the Closing, from An executed counterpart to each of the members Non-Compete Agreement, the Elk Grove Village Lease Agreement and the ▇▇▇▇ of the board of directors of the Acquired CompaniesSale;
(iii) each certified copies of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of incorporation and bylaws of Buyer and the Secretary or an Assistant Secretary (or equivalent officer) resolutions of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the Buyer’s board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents to which the Seller is a partyDocuments, and approving 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; and
(viiiv) duly executed counterparts to each certificates of the Transaction Documents to secretary of state of the jurisdiction in which the Seller Buyer is a party and such other documents or instruments as incorporated stating that Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreementis in good standing.
(b) At On or prior to the Closingdate hereof, Sellers have delivered the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered following to Buyer:
(i) a certificate A copy of all consents from and approvals by third parties required for the transfer of the Secretary or an Assistant Secretary Purchased Assets to Buyer;
(or equivalent officerii) An executed counterpart to each of the Company certifying that attached thereto are true Non-Compete Agreement, the Elk Grove Village Lease Agreement and complete the ▇▇▇▇ of Sale;
(iii) Copies of releases, in customary form, of any and all Liens (other than Permitted Encumbrances) with respect to any of the Purchased Assets, including releases of all Liens securing Liabilities under the MSC Credit Facility;
(iv) Certified copies of all the articles of incorporation and bylaws of each Seller and the resolutions adopted by the of each Seller’s board of directors and the resolutions of the Company each Seller’s shareholders, if necessary, authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents to which the Company is a partyDocuments, and approving the consummation of the transactions contemplated hereby and thereby, ;
(v) Certificates of the secretary of state of the jurisdiction in which each Seller is incorporated and each jurisdiction where it is qualified to do business stating that all such resolutions are each Seller is in full force and effect and are all good standing or the resolutions adopted in connection with the transactions contemplated hereby and therebyapplicable equivalent; and
(iivi) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such Such other documents or instruments as Buyer may reasonably requests and are reasonably necessary request in order to consummate and make effective effect the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence transfer of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds Purchased Assets to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleBuyer.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will Purchaser shall deliver, or cause to be delivered, to BuyerSeller the following:
(i) a stock certificate evidencing payment, by wire transfer(s) to one or more bank accounts designated in writing by Seller (such designation to be made by Seller at least five (5) Business Days prior to the SharesClosing Date), duly endorsed an amount in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoimmediately available funds equal to the Closing Purchase Price;
(ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies;certificate to be delivered pursuant to Section 7.3(c); and
(iii) each with respect to RCL, a duly executed counterpart of an assignment agreement, in form mutually agreed, evidencing the transfer of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory RCL Purchased Interests to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementPurchaser.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, shall deliver, or cause to be delivered, to Purchaser the Sellerfollowing:
(Ai) evidence the certificate to be delivered pursuant to Section 7.2(c);
(ii) with respect to RCL, a duly executed counterpart of an assignment agreement, in form mutually agreed, evidencing the transfer of the purchase by Buyer RCL Purchased Interests to Purchaser;
(iii) a properly completed and duly executed IRS Form W-9 from each Seller;
(iv) with respect to RNZ, (x) a duly executed share transfer form evidencing the transfer of an insurance policy (the “Indemnification Insurance Policy”) RNZ Purchased Interests to Purchaser in substantially the form attached hereto as Exhibit DA, (y) the minutes of the board of directors of RNZ confirming the registration of the share transfer and (z) the updated share register of RNZ showing Purchaser as the registered holder of all of the RNZ Purchased Interests;
(Bv) duly executed resignations from the Closing Date Payment by wire transfer officers and directors of immediately available funds RNZ and RCL who are not Business Employees, which shall include the revocation of powers of attorney or signature authority and removal as depositaries to the account designated by extent such officers and directors have been granted such powers which have not been revoked and removed pursuant to the Seller on Annex Aduly executed resignations of such officers and directors;
(vi) evidence of termination of the Marketing and Sales Agency Agreement between Matariki Forests Trading Limited and Rayonier TRS Forest Operations, LLC, dated as of November 2, 2017;
(vii) duly executed consent of Rayonier TRS to terminate the Consultancy Agreement between Rayonier TRS and Matariki Forests, dated as of December 20, 2013 (the “Consultancy Agreement”); and
(Cviii) duly executed counterparts any Closing Consents or Specified Consents received on or prior to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Closing Deliveries. Subject Seller and/or Owner, as applicable, shall have delivered to PRGI each of the terms set forth following, together with any additional items which PRGI may reasonably request to effect the transactions contemplated herein:
(a) At possession of the Closing, the Seller will deliver, or cause to be delivered, to Buyer:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoPurchased Assets;
(iib) written letters of resignation, effective as a certified copy of the Closing, from each corporate resolutions of the members of the board of directors of Seller and of Owner authorizing the Acquired Companies;
(iii) each of the deliverables transactions contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) herein and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of the RCI Agreement, this Agreement and the other Seller Transaction Documents Documents, together with an incumbency certificate with respect to which officers of Seller executing documents or instruments on behalf of Seller;
(c) intentionally omitted;
(d) the Seller is a partyBill ▇▇ Sale, the Assignment and Assumption Agreement and the consummation other instruments of transfer as shall be reasonably required by PRGI for the transfer to PRGI of all of Seller's right, title and interest to the Purchased Assets free and clear of all claims, liens, encumbrances, security interests and similar interests of any kind or nature whatsoever, including, without limitation, releases of any and all such claims, liens, encumbrances, security interests and similar interests with respect to the Purchased Assets;
(e) the Indemnity Escrow Agreement, duly executed by the Seller, Owner and the Representative, as nominee and attorney-in-fact of Seller and Owner, together with blank stock powers, duly executed by the Representative with medallion level signature guarantee;
(f) the Noncompetition and Nonsolicitation Agreements duly executed by Seller and Owner;
(g) written Seller Consents from all parties, whose consent to the transactions contemplated hereby herein is required;
(h) an opinion of counsel to Seller and therebyOwner substantially in the form of Exhibit 4.6(h) attached hereto;
(i) the offer letter for employment of the Principal, duly executed by the Principal;
(j) the Nonqualified Stock Option Agreement for the Principal, duly executed by the Principal:
(k) the Lock-up Agreements, duly executed by Seller, Owner and that the Representative;
(l) intentionally omitted;
(m) if applicable, the spousal consents, referred to in the RCI Agreement, duly executed by the spouses of Owner;
(n) if applicable, Forms UCC-3, duly executed by each secured lender of Seller, releasing all such resolutions are liens on the Purchased Assets;
(o) a release of RBA and the Other Sellers in full force substantially the form of Exhibit 4.6(o) attached hereto, duly executed by Seller and effect Owner;
(p) a Closing Escrow Agreement, duly executed by Seller, Owner and are all the resolutions adopted in connection with the transactions contemplated hereby Representative;
(q) a Closing Statement, duly executed by Seller and therebyOwner; and
(viir) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such any other documents or instruments as Buyer reasonably requests and are reasonably agreements contemplated hereby and/or necessary or appropriate to consummate and make effective the transactions contemplated by this Agreementhereby.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Sources: Asset Purchase Agreement (Profit Recovery Group International Inc)
Closing Deliveries. Subject to the terms set forth herein:
(a) VE Closing Deliveries. At the Closing, the Seller will VE shall deliver, or cause to be delivered, to BuyerVI (or to a wholly owned Affiliate of VI designated by VI), the following:
(i) a stock certificate evidencing the SharesPut Option Exercise Notice, duly endorsed in blank or accompanied executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoVE;
(ii) written stock transfer forms, or such other form(s) of transfer as may be agreed between VI and VE (each acting reasonably) prior to the Closing, duly executed in proper form (by the VE Members or by VE on behalf of the VE Members under the Powers of Attorney) transferring all of the VE Shares to VI (or to a wholly owned Affiliate of VI designated by VI);
(iii) certificates for all of the VE Shares in the names of the VE Members or, if VE is not (having made all reasonable efforts) able to deliver any such certificates, a duly executed (by each VE Member unable to deliver such certificate, or by VE on behalf of each such VE Member under the Powers of Attorney) Share Certificate Indemnity in respect of each missing certificate;
(iv) the VE Direction Letter, duly executed by VE;
(v) duly executed letters of resignation, effective as of the ClosingClosing Date, from each providing for the resignation of all of the members persons holding the positions of the board a director of directors VE or any of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company its Subsidiaries in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of office immediately prior to the Closing Date and signed which director was appointed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedany VE Member;
(vi) a certificate of an executive officer of VE to the Secretary or an Assistant Secretary effect set forth in Section 7.2(f);
(or equivalent officervii) a copy of the Seller certifying that attached thereto are true Distribution Agent Agreement, duly executed by VE, the VE Member Representative and complete copies the Distribution Agent;
(viii) a Deed of all resolutions adopted Warranty, duly executed by each VE Member or by VE on behalf of each VE Member under the Powers of Attorney;
(ix) a Voting PoA, duly executed by each VE Member or by VE on behalf of each VE Member under the Powers of Attorney;
(x) a copy of the Data Rights Agreement, duly executed by VE and the VE Member Representative;
(xi) the Deed Poll, duly executed by VE;
(xii) the VEMR Trust Deed, duly executed by the board of directors VE Member Representative;
(xiii) the Litigation Management Deed, duly executed by the VE Member Representative and each of the Seller authorizing the executionLMC Members; and
(xiv) such other documents, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, and instruments or agreements as may be reasonably requested by VI in connection with 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreementhereby.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Sources: Transaction Agreement
Closing Deliveries. Subject In addition to any other documents to be delivered under other provisions of this Agreement, at the terms set forth hereinClosing:
(a) At the Closing, the Seller will The Company shall deliver, or cause to be delivered, to BuyerParent:
(i) a stock certificate evidencing ▇▇▇▇ of Sale in the Shares, duly endorsed in blank or accompanied form attached hereto as Exhibit B executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe Company;
(ii) written an Assignment and Assumption Agreement in the form attached hereto as Exhibit C executed by the Company;
(iii) resignation letters of resignation(in form reasonably satisfactory to Parent), effective as of the Effective Time, evidencing the resignation of each Company employee serving as an officer or director of an Acquired Entity or Center Entity that Parent has requested to resign as of Closing, executed by each such officer and director (or, in the event any such officer or director refuses to execute such resignation letters, evidence (in form reasonably satisfactory to Parent) of removal of such Person from each of the members of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(asuch position(s));
(iv) certification from pay-off letters with respect to all unpaid Indebtedness (other than Center-Level Debt and the promissory notes listed on Section 2.14(a)(v) of the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(hDisclosure Schedule), dated as in a form reasonably satisfactory to Parent, providing for, upon the payment of all unpaid Indebtedness (other than Center-Level Debt and the notes listed on Section 2.14(a)(v) of the Closing Date and signed Company Disclosure Schedule), the termination of all Encumbrances (other than such Encumbrances securing Center-Level Debt) held by an officer the applicable lenders with respect to the assets of the Company, certifying that the Shares are not “United States real property interest” within Acquired Entities and Center Entities (including the meaning of Section 897(c)(1) authorization of the Code filing by Parent of all necessary UCC-1 termination statements and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS other necessary documentation in accordance connection with the provisions termination of Treasury Regulations Section 1.897-2(h)(2the lenders’ security interests), executed by the lenders;
(v) a good standing certificate (or its equivalent) for each properly executed affidavit from the Company reasonably satisfactory to Parent and that complies with Section 1445 of the Acquired Companies from Internal Revenue Code of 1986, as amended (the secretary of state or similar Governmental Body of “Code”) and the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedTreasury Regulations issued thereunder;
(vi) a certificate executed by the chief executive officer of the Company as to the satisfaction of the conditions set forth in Sections 5.1(a), (b), (f), and (g);
(vii) the certificate of incorporation (or similar Organizational Documents) of the Company and each of the Acquired Entities and Center Entities (certified by the Secretary of State of the applicable jurisdiction of incorporation or formation) and a certificate of good standing from the applicable jurisdiction of incorporation and each other jurisdiction in which the Company and the Acquired Entities and Center Entities are qualified to do business, each dated within a reasonable time prior to the Closing Date;
(viii) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that Company certifying, as complete and accurate as of the Closing, attached thereto are true and complete copies of the bylaws of the Company, certifying and attaching all requisite resolutions adopted by or actions of the Company’s board of directors of and stockholders approving the Seller authorizing the execution, execution and delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, and the consummation of the transactions contemplated hereby and therebyhereby, and that all such resolutions are in full force certifying to the incumbency of the officers of the Company executing this Agreement and effect and are all any other documents being executed by the resolutions adopted Company in connection with the transactions contemplated hereby and thereby; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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 therebyhereby; and
(iiix) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) Escrow Agreement in the form attached hereto as Exhibit D;A executed by Company.
(Bb) Parent shall deliver or cause to be delivered to:
(i) the holders of the Indebtedness described in Section 1.12(a)(iv) above, the amount necessary to fully repay such Indebtedness as of the Closing Date Payment by wire transfer of immediately available funds in accordance with the pay-off letters delivered to the account designated Parent by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a partyCompany;
(ii) paythe Company, or cause the Initial Consideration Amount minus the amount paid by Parent pursuant to be paidSection 1.12(b)(i);
(iii) the Company, on behalf an Assignment and Assumption Agreement in the form attached hereto as Exhibit C executed by Holdings;
(iv) the Company, a certificate executed by Parent as to the satisfaction of the Seller or conditions set forth in Sections 5.2(a) and (b);
(v) the Acquired CompaniesCompany, the following:Escrow Agreement in the form attached hereto as Exhibit A executed by Holdings;
(Avi) at the Closing (Company, an amended or if replacement letter of credit for the Standby Letter of Credit Number 3114672, dated October 14, 2010; Issuing Bank: Bank of America, N.A.; Applicant: NSC; Beneficiary: Seaside Ranchos and The ▇▇▇▇▇ ▇▇▇▇ Trust as successors in interest to DDR Properties, in a later due date is applicable with regard form reasonably acceptable to the relevant Company Transaction ExpenseCompany, at such later date), which removes the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Dateas a guarantor thereto; and
(Bvii) at the ClosingEscrow Agent, the Estimated Company Indebtedness by wire transfer of immediately available funds Escrow Agreement in the amounts form attached hereto as Exhibit A executed by Holdings and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleEscrow Fund.
Appears in 1 contract
Closing Deliveries. Subject In addition to any other documents to be delivered under other provisions of this Agreement, at the terms set forth hereinClosing:
(a) At the Closing, the Seller will deliver, or cause to be delivered, to Buyer:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;
(ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the The Company or any Company Subsidiary is a party and such other documents or instruments the Sellers, as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closingapplicable, shall deliver, or cause to be delivered, to the SellerPurchaser Entities:
(Ai) evidence the Articles of Merger, executed by the purchase by Buyer of an insurance policy Company;
(the “Indemnification Insurance Policy”ii) a subscription agreement in substantially the form attached hereto as Exhibit DA (the “Subscription Agreement”), executed by each Seller;
(Biii) a signature page to the Restated Purchaser LLC Agreement, executed by each Seller;
(iv) the Transition Services Agreement, executed by FNH;
(v) a registration rights agreement in substantially the form attached hereto as Exhibit B (the “Registration Rights Agreement”), executed by each Seller;
(vi) a duly executed non-foreign affidavit dated as of the Closing Date Payment from each Seller in form and substance required under Treasury Regulations issued pursuant to Section 1445 of the Code, certifying that such Seller is not a “foreign person” as defined in Section 1445 of the Code;
(vii) (A) the articles of organization (or similar Governing Document) of the Company and each of its Subsidiaries, each certified by wire transfer the Secretary of immediately available funds State (or similar authority) of the applicable jurisdiction of organization of each such entity as of a date within ten (10) Business Days prior to the account Closing Date, and (B) a certificate of good standing (or similar certification) for the Company and each of its Subsidiaries, from the applicable jurisdiction of organization of each such entity, each dated within ten (10) Business Days prior to the Closing Date;
(viii) consents with respect to the Company Contracts listed on Section 1.8(a)(viii) of the Company Disclosure Schedule attached hereto;
(ix) resignations effective as of the Effective Time of those officers, managers and members of the board of managers and/or board of directors, if and as applicable, of the Company and its Subsidiaries as designated by the Purchaser prior to the Closing, executed by such individuals;
(x) an assignment agreement executed by ▇▇▇▇▇ Fargo Bank, National Association, FNH and other parties named therein, and the Company providing for the Company Debt Assumption and, upon repayment of such amount by the Company or its successor, the termination of all security interests under the Seller on Annex ACredit Agreement with respect to the assets of the Company and its Subsidiaries (including the authorization of the filing of all necessary UCC-1 termination statements and other necessary documentation in connection with the termination of such security interests) and any other obligations of the Company or its Subsidiaries with respect to the Seller Credit Agreement;
(xi) a funds flow statement in form reasonably acceptable to the Purchaser Entities and the Company (the “Funds Flow Statement”), executed by the Company; and
(Cxii) duly such other documents and instruments as may be reasonably requested by the Purchaser Entities.
(b) The Purchaser Entities shall deliver, or caused to be delivered, to the Company or the Sellers, as applicable:
(i) the Articles of Merger, executed counterparts to each of the Transaction Documents to which Buyer is a partyby Merger Sub;
(ii) paythe Subscription Agreements, or cause executed by Parent and Purchaser, as applicable;
(iii) a signature page to be paidthe Restated Purchaser LLC Agreement, on behalf executed by Purchaser, Parent, and each other member of Purchaser;
(iv) the Seller or Transition Services Agreement, executed by Purchaser;
(v) the Acquired CompaniesRegistration Rights Agreement, the following:executed by Purchaser and Parent;
(vi) (A) at the certificate of formation of Purchaser and the charter of Merger Sub, each certified by the Secretary of State (or similar authority) of the applicable jurisdiction of organization of each such Purchaser Entity as of a date within ten (10) Business Days of the Closing Date, and (B) certificates of good standing (or if a later due date is applicable with regard similar certification) of each Purchaser Entity from the jurisdiction of organization of each such Purchaser Entity, each dated within ten (10) Business Days prior to the relevant Company Transaction ExpenseClosing Date;
(vii) the Funds Flow Statement, at such later date), executed by the Company Transaction Expenses by wire transfer Purchaser Entities;
(viii) a duly executed non-foreign affidavit dated as of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for from Purchaser and each member of Purchaser in form and substance required under Treasury Regulations issued pursuant to Section 1445 of the payments which have to be made on Code, certifying that Purchaser and each such date and within two (2) Business Days after payment member is made for payments to be made after not a “foreign person” as defined in Section 1445 of the Closing DateCode; and
(Bix) at such other documents and instruments as may be reasonably requested by the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleCompany.
Appears in 1 contract
Closing Deliveries. Subject to At Closing, the terms set forth hereinfollowing shall occur:
(a) At The Seller shall have delivered to Buyer each of the Closing, the Seller will deliver, or cause to be delivered, to Buyerfollowing:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or executed original of an assignment of membership interests (and other instruments of transfer duly executed conveyance), in blankthe form attached hereto as Exhibit D (the “Assignment of Membership Interest”), with conveying all required stock transfer tax stamps affixed theretoof Seller’s right, title and interest to the Securities to Buyer, free and clear of all Liens, except for those created by Buyer or applicable securities Laws;
(ii) written letters stock certificates evidencing the shares of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired CompaniesManagement;
(iii) each a fully executed copy of the deliverables contemplated by Section 2.5(aLimited Liability Agreement for Seller (the “Seller Operating Agreement”);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as certified copies of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions duly adopted by the board of directors managers (or equivalent governing body) of the (A) Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a partyother agreements contemplated hereby, and the consummation of the all transactions contemplated hereby hereby, or (B) M2P2 authorizing the transfer of its Securities to Seller by its members immediately prior to the Closing;
(v) the minute books, stock or equity records, corporate seal, copies of corporate organizational documents and therebyother materials related to the corporate administration of each of the Companies and the Company Subsidiaries;
(vi) the resignations of all members of the boards of managers or directors and all officers of the Companies identified by Buyer prior to the Closing;
(vii) an original, duly executed by Seller and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with Escrow Agent, of the transactions contemplated hereby and therebyEscrow Agreement; and
(viiviii) an original, duly executed counterparts to each by Seller, of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Pledge Agreement.
(b) At The Parties have received: (i) the Closingconsents, the Company willapprovals and waivers set forth on Schedule 2.01(b), and (ii) a letter from Hormel Foods Corporation (“Hormel”)
(1) stating that to Hormel’s knowledge, no default currently exists under any Hog Procurement Agreements in effect as of the Closing Date between any Companies and Hormel (the “Hog Procurement Agreements”) and (2) attaching a schedule setting forth the Market Ledger Balance (as such term is defined in the Hog Procurement Agreements) under the Hog Procurement Agreements as of August 14, 2010.
(c) Buyer shall have delivered each of the following to Seller will cause or the Company and its Subsidiaries toEscrow Agent, deliver, or cause to be delivered to Buyeras applicable:
(i) a certificate to Seller, the Preliminary Purchase Price (less the Escrow Amount) as set forth in Section 1.03;
(ii) to the Escrow Agent, the Escrow Amount as set forth in Section 1.05;
(iii) to Seller, certified copies of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions duly adopted by the Buyer’s board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a partyother agreements contemplated hereby, and the consummation of the all transactions contemplated hereby hereunder and therebythereunder;
(iv) to Seller, a form of amendment to the M2P2 Operating Agreement (the “M2P2 Operating Agreement Amendment”), whereby M2P2 elects to have its membership interests treated as securities for purposes of Article 8 of the Uniform Commercial Code (as defined in the Pledge Agreement) to be duly authorized and that all such resolutions are in full force executed immediately after the Closing;
(v) to Seller, a form of certificate representing the Securities to be duly authorized, issued and effect executed immediately after the Closing (the “Certificate”);
(vi) to Seller, an original, duly executed by Buyer and are all the resolutions adopted in connection with Escrow Agent, of the transactions contemplated hereby and therebyEscrow Agreement;
(vii) to Seller, an original, duly executed by Buyer, of the Note; and
(iiviii) to Seller, an original, duly executed counterparts to each by Buyer, of the Transaction Documents to which Pledge Agreement and the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary certificates required under the Pledge Agreement, including pursuant to consummate and make effective Section 2(c) of the transactions contemplated by this Pledge Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Sources: Membership Purchase Agreement (Agfeed Industries, Inc)
Closing Deliveries. Subject The Seller Parties shall have delivered to Purchaser the terms set forth herein:
(a) At the Closing, the Seller will deliver, or cause to be delivered, to Buyerfollowing:
(i) a stock certificate evidencing executed counterparts to the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoPurchased Interest Assignment and Assumption Agreement for the Applicable Purchased Interests;
(ii) written letters a certificate of resignationthe Seller Parties, effective dated as of the ClosingRespective Closing Date, from and signed by an authorized officer of each of Seller Party, certifying that the members of the board of directors of the Acquired Companiesconditions set forth in Sections 7.04(a) and 7.04(b) have been satisfied;
(iii) each all minute books, ownership schedules or ledgers (or similar registries) and limited liability company records of the deliverables contemplated by Section 2.5(a)Applicable Purchased Entities in the possession of the Seller Parties;
(iv) certification from the Company a certificate signed by each Seller Party that such Seller Party is not a “foreign person” as defined in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as Section 1445 of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)Code;
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedIntentionally Omitted;
(vi) solely as a certificate condition to the Tranche II Closing, executed Special Warranty Deed with respect to the Market Place Property in the form of Exhibit H (the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and“Deed”);
(vii) duly solely as a condition to the Tranche II Closing, executed counterparts counterpart to the Lease Assignment and Assumption Agreement;
(viii) solely as a condition to the Tranche II Closing, executed ▇▇▇▇ of Sale with respect to the Market Place Property in the form of Exhibit I;
(ix) a certified copy of (a) the Articles of Organization (and any amendments thereto) of each of the Transaction Documents to which the Seller is a party Applicable Purchased Entities, and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of good standing for each of the Secretary Applicable Purchased Entities, dated no earlier than five (5) days prior to the Respective Closing;
(x) solely as a condition to the Tranche II Closing, executed Owner’s Affidavit with respect to the Market Place Property in the form of Exhibit J or an Assistant Secretary such other form as may be agreed between Market Place Seller and the Title Company;
(xi) executed counterparts to the Applicable Loan Assumption Documents, to effect the Lender consents and the other transactions contemplated by Section 5.16(a);
(xii) solely as a condition to the Tranche II Closing, executed counterparts to the Market Place Loan Assumption Documents, as may be reasonably required by the Market Place Lender, to effect the assumption of the Market Place Loan Documents by Purchaser and the other transactions contemplated by Section 5.13(b);
(xiii) to the extent reasonably required by Purchaser, executed amendments to the operating agreements of the Applicable Purchased Entities to remove manager parties, in forms reasonably acceptable to Purchaser;
(xiv) evidence, in form and substance reasonably acceptable to Purchaser, of the complete pay-off by the Seller Parties at or equivalent officerprior to the Tranche I Closing of the Indebtedness set forth on Section 7.04(g)(xiv) of the Company certifying Disclosure Schedules, it being acknowledged and agreed that attached thereto the Seller Parties are true and complete copies of all resolutions adopted by permitted to use proceeds from the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, and the consummation of the transactions contemplated hereby and thereby, and that all Tranche I Purchase Price for such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby; andpurposes;
(iixv) duly executed counterparts to each of the Transaction Documents to which Mutual Release executed by the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.Seller;
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(Axvi) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds termination at or prior to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each Respective Closing of the Transaction Documents to which Buyer is a party;
(ii) pay, all property management or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable advisory agreements with regard respect to the relevant Company Transaction ExpenseApplicable Properties, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and form reasonably acceptable to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.Purchaser;
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Diversified Real Estate Trust, Inc.)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will County shall deliver, or cause to be delivered, to the Buyer each of the following, each of which shall be in form and content reasonably acceptable to the Buyer, the County, and their respective counsel:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoPurchased Assets;
(ii) written letters a General Assignment and B▇▇▇ of resignationSale, effective in substantially the form attached hereto as Exhibit B (the “B▇▇▇ of Sale”), duly executed by the Closing, from each of the members of the board of directors of the Acquired CompaniesCounty;
(iii) each of a Deed for the deliverables contemplated Owned Real Property, in substantially the form attached hereto as Exhibit C (the “Deed”), duly executed by Section 2.5(a)the County;
(iv) certification from an Assignment and Assumption Agreement, in substantially the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) form attached hereto as Exhibit D (the “Assignment and 1.897-2(hAssumption Agreement”), dated as of duly executed by the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)County;
(v) a good standing certificate Residuals Management Agreement in substantially the form of Exhibit E attached hereto (or its equivalent) for each of the Acquired Companies from “Residuals Management Agreement”), duly executed by the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedCounty;
(vi) a confirmatory amendment to the Franchise Agreement acknowledging the Closing and the transfer of the Purchased Assets, and the resultant extension of the Franchise and the Franchise Area to include the Service Area, all as contemplated in the Franchise Agreement and the Letter of Intent;
(vii) all original certificates of title, manufacturer’s statements of origin, bills of sale or other similar title documents for the Plant and Equipment that are in the possession of the County, duly endorsed for transfer, providedthat if the County shall be unable to deliver to the Buyer any original certificate of title, manufacturer’s statement of origin, b▇▇▇ of sale or other similar title document in respect of any Plant, Property and Equipment included in the Secretary Purchased Assets, the County will deliver a b▇▇▇ of sale or an Assistant Secretary similar title document to the Buyer, in form and substance satisfactory to the Buyer in its sole discretion, with respect to each such item of Plant and Equipment or cooperate with the Buyer’s reasonable requests to obtain any replacement certificate of title or similar title document;
(viii) all Permits listed on Schedule 2.1(f), to the extent transferable;
(ix) all Required Consents (as defined below in Section 8.4) to be obtained or equivalent officermade by the County;
(x) a correct and complete list of the Seller certifying that attached thereto are true Customers of the County as of the Closing Date;
(xi) the certificates required by Sections 9.1 and complete copies of all resolutions adopted 9.2;
(xii) a certificate evidencing the approval by the board of directors Commissioners of the Seller authorizing County of the execution, execution and delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, and the consummation of the transactions contemplated hereby and thereby, and hereby;
(xiii) the original opinion of legal counsel described in Section 2.4(a)(i) or evidence reasonably acceptable to the Buyer that all such resolutions are the County has obtained the replacement financing described in full force and effect and are Section 2.4(b)(ii) of this Agreement;
(xiv) duly executed payoff letters or release letters in respect of the Indebtedness of the County as of the Closing from all the resolutions adopted lenders thereof, all in connection form and substance reasonably acceptable to the Buyer (the “Payoff Letters”), as may be reasonably requested by the Buyer; provided, however that if the County obtains the opinion of legal counsel specified in Section 2.4(a)(i) of this Agreement, the County shall not be required pursuant to this Section 3.2(a)(xiii) to obtain and deliver a Payoff Letter for the obligations of the County for Indebtedness in respect of the Bond;
(xv) duly executed UCC-3 termination statements, lien releases or such other release and termination instruments (or copies thereof), as the Buyer shall reasonably request with respect to any and all Liens on the transactions contemplated hereby Purchased Assets, including, without limitation, any and therebyall Liens in respect of any Indebtedness to be paid off or refinanced at the Closing, in order to vest all right, title and interest in and to the Purchased Assets free and clear of all Liens; and
(viixvi) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or and instruments as Buyer reasonably requests and are may be reasonably necessary to effect the intent of this Agreement and consummate and make effective the transactions contemplated by this Agreementhereby.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, shall deliver, or cause to be delivered, to each of the Sellerfollowing:
(Ai) evidence if the provisions of Section 2.4(b)(i) or Section 2.4(b)(ii) shall govern the payment of the purchase by Bond Indebtedness, a Promissory Note of the Buyer drawn payable to the County evidencing the obligations of an insurance policy (the “Indemnification Insurance Policy”Buyer to the County with respect to the payment of the Bond Indebtedness, as provided in Section 2.4(b)(i) in the form attached hereto or Section 2.4(b)(ii), as Exhibit Dapplicable;
(Bii) if the Buyer is to pay any amounts pursuant to Section 2.4(a) of this Agreement, the NAV Note, duly executed by the Buyer;
(iii) the Closing Date Payment by wire transfer of immediately available funds to the account designated Assignment and Assumption Agreement duly executed by the Seller on Annex A; andBuyer;
(Civ) the Residuals Management Agreement duly executed counterparts to each by the Buyer;
(v) the certificates required by Sections 8.1 and 8.2;
(vi) a certificate signed by the Secretary or Assistant Secretary of the Buyer certifying the truth and correctness of attached copies of the certificate of incorporation and bylaws, and that the board of directors of the Buyer has approved the execution, delivery of this Agreement, the Transaction Documents to which Buyer it is a party;
(ii) pay, or cause to be paid, on behalf party and the consummation of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Datetransactions contemplated hereby; and
(Bvii) at a certificate, dated as of a date no earlier than three days prior to the ClosingClosing Date, duly issued by the Estimated Company Indebtedness by wire transfer of immediately available funds applicable Governmental Authority in the amounts State of Delaware, showing that the Buyer is in good standing and authorized to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Scheduledo business in such jurisdiction.
Appears in 1 contract
Closing Deliveries. Subject In addition to any other documents to be delivered under other provisions of this Agreement, at the terms set forth hereinClosing:
(a) At Seller shall deliver the Closing, the Seller will deliver, or cause to be delivered, to Buyerfollowing:
(i) a stock certificate evidencing ▇▇▇▇ of Sale, Assignment, and Assumption Agreement for all of the SharesPurchased Assets and the Assumed Liabilities substantially in the form attached to this Agreement as Exhibit A (the “▇▇▇▇ of Sale”), duly endorsed in blank or accompanied executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoSeller;
(ii) written letters of resignation, effective as a Sublease for a portion of the Closingreal property located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, from each of ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ , Connecticut, in substantially the members of form attached to this Agreement as Exhibit B (the board of directors of the Acquired Companies“Sublease”), executed by Seller;
(iii) each of an employment agreement between Buyer and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ substantially in the deliverables contemplated form attached to this Agreement as Exhibit C (the “Employment Agreement”), executed by Section 2.5(a)▇▇▇▇ ▇. ▇▇▇▇▇▇▇;
(iv) certification from copies of each Consent and Governmental Authorization identified in Section 3.3(b) of the Company Disclosure Statement in accordance with Treasury Regulations Sections 1.1445-2(c)(3form satisfactory to Buyer;
(v) and 1.897-2(h)an opinion of Parrett, Porto, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., counsel to Seller, dated as of the Closing Date and signed by an officer of Date, substantially in the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory form attached to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedthis Agreement as Exhibit D;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) secretary of Seller in form and substance satisfactory to Buyer, dated as of the Closing Date, attaching (A) a copy of the resolutions duly adopted by the board of directors and shareholders of Seller, authorizing and approving the execution, delivery, and performance of this Agreement and the consummation of the Contemplated Transactions, (B) the certificate of incorporation of Seller and all amendments thereto, certified as of a recent date by the Secretary of State of the State of Connecticut; and (C) incumbency, authority, and specimen signatures of each of the officers of Seller executing this Agreement and any other Seller Transaction Document executed on behalf of Seller and certifying that attached thereto are true the authenticity of such signatures;
(vii) certificates dated not more than five Business Days before the Closing Date as to the good standing of Seller, certified by the Secretary of State of the State of Connecticut and complete copies each state where Seller is qualified to do business as a foreign corporation; and
(viii) each other document, certificate, and instrument of all transfer and assignment as Buyer determines to be necessary, desirable, or appropriate to effectuate or evidence the Contemplated Transactions.
(b) Buyer shall deliver the following:
(i) to Seller, the ▇▇▇▇ of Sale, executed by Buyer;
(ii) to Seller, the Sublease, executed by Parent;
(iii) to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the Employment Agreement, executed by Buyer;
(iv) to Seller, the Closing Payment;
(v) to Seller, the certificate representing the Parent Shares;
(vi) a certificate of the secretary or assistant secretary of each of Buyer and Parent in form and substance satisfactory to Seller, dated as of the Closing Date, attaching (A) a copy of the resolutions duly adopted by the board of directors of the Seller each of Buyer and Parent, authorizing and approving the execution, delivery delivery, and performance of this Agreement and the Transaction Documents to which the Seller is a party, and the consummation of the transactions contemplated hereby Contemplated Transactions, (B) the certificate of incorporation of each of Buyer and therebyParent and all amendments thereto, each certified as of a recent date by the Secretary of State of the State of Delaware; and (C) incumbency, authority, and that all specimen signatures of each of the officers of Buyer and Parent executing this Agreement and any other Buyer Transaction Document executed on behalf of Buyer or Parent, as applicable, and certifying the authenticity of such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and therebysignatures; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) certificates dated not more than five Business Days before the Closing Date Payment by wire transfer of immediately available funds as to the account designated good standing of each of Buyer and Parent, certified by the Seller on Annex A; and
(C) duly executed counterparts to each Secretary of State of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf State of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleDelaware.
Appears in 1 contract
Closing Deliveries. Subject to At the terms set forth hereinClosing, the parties hereto shall take the following actions:
(a) At the ClosingSeller shall deliver (or, the Seller will deliver, or cause with respect to be delivered, Section 2.05(a)(xiv) make available) to Buyer:
(i) a stock certificate receipt evidencing receipt by Seller and payment by Buyer of the Estimated Cash Consideration;
(ii) a receipt evidencing receipt by Seller of the Buyer Preferred Shares;
(iii) certificates representing all of the Shares, duly endorsed executed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with in proper form for transfer and accompanied by all required requisite stock transfer tax stamps affixed theretoTransfer Tax stamps;
(iiiv) written letters good standing and compliance certificates (or their equivalent), dated as of resignationa date not more than thirty days prior to the Closing Date, as to the Company’s good standing and licensing status in the State of Indiana and in each other state set forth on Schedule 2.05(a)(iv), together with a copy, dated as of a date not more than ten Business Days prior to the Closing Date, of the Articles of Incorporation of the Company certified by the Indiana Secretary of State;
(v) By-Laws of the Company, together with all amendments thereto or restatements thereof, certified by the Secretary or Assistant Secretary of the Company as of the Closing Date;
(vi) good standing and compliance certificates (or their equivalent), dated as of a date not more than thirty days prior to the Closing Date, as to Dixie’s good standing and licensing status in the State of Indiana and each other state set forth on Schedule 2.05(a)(vi), together with a copy, dated as of a date not more than ten Business Days prior to the Closing Date, of the Articles of Incorporation of D▇▇▇▇ certified by the Indiana Secretary of State;
(vii) By-Laws of D▇▇▇▇, together with all amendments thereto or restatements thereof, certified by the Secretary or Assistant Secretary of D▇▇▇▇ as of the Closing Date;
(viii) resolutions of the Board of Directors of Seller, certified by the Secretary or Assistant Secretary of Seller, approving and authorizing the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby;
(ix) a certificate of the Secretary or Assistant Secretary of Seller, as to the incumbency of the officers executing this Agreement, and the genuineness of their signatures;
(x) the certificate contemplated in Section 7.01;
(xi) copies of all regulatory approvals obtained by Seller in connection with the transactions contemplated by this Agreement;
(xii) resignations, effective as of the Closing, from each of all of the members directors and officers of the board of directors of the Acquired CompaniesCompany; other than R▇▇▇▇▇ ▇. ▇▇▇▇▇▇;
(iiixiii) each resignations, effective as of the deliverables contemplated by Section 2.5(a)Closing, of all directors and officers of D▇▇▇▇;
(ivxiv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) Books and 1.897-2(h)Records, dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(27.08;
(xv) the Surplus Debentures, together with the Transfer Documents;
(xvi) evidence of the termination of Intercompany Obligations pursuant to Section 5.07;
(xvii) evidence of the termination and release of Seller’s debt obligations to CIT Group under that certain Credit Agreement by and between Seller and CIT Group dated November 13, 2003 (the “Credit Agreement”);
(xviii) fully executed original copies of the Lease Agreement, the Assumption Agreement, the B▇▇▇ of Sale, General Assignment and Allonge, the Shareholders Agreement and the Pledge Agreement; and
(xix) such other documents, instruments or certificates as Buyer may reasonably request.
(b) Buyer shall deliver to Seller:
(i) a receipt evidencing receipt by Buyer of the Shares;
(ii) a receipt evidencing receipt by Buyer of the Surplus Debentures;
(iii) certificates representing all of the Buyer Preferred Shares;
(iv) the Estimated Cash Consideration, by Wire Transfer payable as follows: (A) to an account designated not later than three Business Days prior to the Closing Date by CIT Group in the amount required to satisfy in full Seller’s debt obligations under the Credit Agreement with CIT Group and (B) to Seller in an amount equal to the difference between the Estimated Cash Consideration and the amount payable to CIT Group as provided in (A) above;
(v) a good standing certificate (or its equivalent) for each resolutions of the Acquired Companies from the secretary Board of state or similar Governmental Body Directors of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of Buyer, certified by the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true Buyer, approving and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; andhereby;
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(ivi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer as to the incumbency of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of officers executing this Agreement and the Transaction Documents to which genuineness of their signatures;
(vii) the Company is a partycertificate contemplated in Section 8.01;
(viii) fully executed original copies of the Assumption Agreement, the B▇▇▇ of Sale, General Assignment and Allonge, the Shareholders Agreement and the consummation Pledge Agreement;
(ix) copies of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted regulatory approvals obtained by Buyer in connection with the transactions contemplated hereby by this Agreement, including without limitation any necessary approvals or non-disapprovals from the Indiana Commissioner of Insurance with respect to the acquisition of control of the Company and therebyD▇▇▇▇ by Buyer;
(x) a release executed by Buyer, the Company and D▇▇▇▇ as contemplated by Section 8.10 releasing Seller from any liability with respect to the indebtedness of Seller to be assumed by Buyer pursuant to Section 2.02(b)(ii); and
(iixi) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents documents, instruments or instruments certificates as Buyer Seller may reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreementrequest.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Standard Management Corp)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will shall deliver, or cause to be delivered, to Buyerthe Buyer the following:
(i) a stock the certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoto be delivered pursuant to Section 9.2(f);
(ii) written letters of resignation, effective as a duly executed counterpart of the Closing, from each ▇▇▇▇ of the members of the board of directors of the Acquired CompaniesSale and Assignment and Assumption Agreement;
(iii) each copies of the deliverables contemplated by duly executed ancillary documents and agreements to the collective bargaining agreement, including the Labor Agreement, entered into between MSK and MagnaChip Semiconductor Labor Union, and the Transferred Employee Confirmations obtained pursuant to Section 2.5(a)8.1;
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as Ancillary Agreements that are reasonably necessary for the Buyer to file for the registration of the Closing Date and signed by an officer transfer of the Company, certifying that Owned Real Property included in the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)Purchased Assets as contemplated by this Agreement;
(v) a good standing certificate (or its equivalent) for each duly executed counterpart of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedIntellectual Property Assignment Agreement;
(vi) a certificate duly executed counterpart of the Secretary or an Assistant Secretary Patent Cross-License Agreement;
(or equivalent officervii) a duly executed counterpart of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors Transition Services Agreement (Buyer to MSK);
(viii) a duly executed counterpart of the Seller authorizing the execution, delivery and performance of this Transition Services Agreement and the Transaction Documents (MSK to which the Seller is Buyer);
(ix) a party, and the consummation duly executed counterpart of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all Foundry Services Agreement (Buyer to MSK);
(x) a duly executed counterpart of the resolutions adopted in connection with Foundry Services Agreement (MSK to Buyer);
(xi) a duly executed counterpart of the transactions contemplated hereby and therebyLease Agreement for R Building;
(xii) a duly executed counterpart of the Epitaxy Wafer Service Agreement; and
(viixiii) a duly executed counterparts to each counterpart of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Transitional Trademark License Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, shall deliver, or cause to be delivered, to the SellerSeller (or the applicable Subsidiary Transferor) the following:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(Bi) the Closing Date Payment Estimated Purchase Price by wire transfer of immediately available funds to the account one or more bank accounts designated by the Seller in writing to the Buyer no later than three (3) Business Days before the Closing Date allocated to the relevant Subsidiary Transferors as indicated on Annex Exhibit A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause the certificate to be paid, on behalf delivered pursuant to Section 9.3(c);
(iii) a duly executed counterpart of the Seller or the Acquired Companies, the following:▇▇▇▇ of Sale and Assignment and Assumption Agreement;
(Aiv) at copies of documents to verify the Closing receipt of the Required Regulatory Approvals;
(or if v) a later due date is applicable with regard duly executed counterpart of the Intellectual Property Assignment Agreement;
(vi) a duly executed counterpart of the Patent Cross-License Agreement;
(vii) a duly executed counterpart of the Transition Services Agreement (Buyer to MSK);
(viii) a duly executed counterpart of the relevant Company Transaction Expense, at such later dateTransition Services Agreement (MSK to Buyer), ;
(ix) a duly executed counterpart of the Company Transaction Expenses by wire transfer Foundry Services Agreement (Buyer to MSK);
(x) a duly executed counterpart of immediately available funds in the amounts and Foundry Services Agreement (MSK to Buyer);
(xi) a duly executed counterpart of the payees identified on Lease Agreement for R Building;
(xii) a duly executed counterpart of the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing DateEpitaxy Wafer Service Agreement; and
(Bxiii) at a duly executed counterpart of the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleTransitional Trademark License Agreement.
Appears in 1 contract
Sources: Business Transfer Agreement (MAGNACHIP SEMICONDUCTOR Corp)
Closing Deliveries. Subject to the terms set forth herein:
(a) At On or prior to the ClosingClosing (or at such other time as may be specifically referred to below), the Seller will deliverCompany shall issue, deliver or cause to be delivered, delivered to Buyer:each Purchaser the following (the “Company Deliverables”):
(i) a stock certificate evidencing the Sharesthis Agreement, duly endorsed in blank or accompanied executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe Company;
(ii) written letters one or more certificates (or reasonable evidence of resignationissuance by book entry) evidencing a number of shares of Preferred Stock set forth on such Purchaser’s signature page to this Agreement, effective as registered in the name of such Purchaser, and evidence of the Closing, from each filing and acceptance of the members Certificate of Designation by the Secretary of State of the board State of directors of the Acquired CompaniesDelaware;
(iii) each a Warrant, duly executed by the Company, registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to such Purchaser’s Subscription Amount, divided by the deliverables contemplated Warrant Strike Price, multiplied by Section 2.5(a)33.3%, and rounded to the nearest whole Warrant, subject to adjustment;
(iv) certification from the a legal opinion of Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)Counsel, dated as of the Closing Date and signed in the form attached hereto as Exhibit D, executed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code such counsel and proof reasonably satisfactory to Buyer that the Company shall have provided notice addressed to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)Purchasers and B. ▇▇▇▇▇ Securities, Inc.;
(v) a good standing certificate (or its equivalent) for each of duly executed Irrevocable Transfer Agent Instructions acknowledged in writing by the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedTransfer Agent;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller Company (the “Secretary’s Certificate”), dated as of the Closing Date, (a) certifying that attached thereto are true and complete copies of all the resolutions adopted by the board Board of directors Directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is Company or a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective authorized committee thereof approving the transactions contemplated by this Agreement.
Agreement and the other Transaction Documents and the issuance of the Preferred Stock, the Warrants and the Warrant Shares, (b) At certifying the Closing, current versions of the Company will, Restated Certificate of Incorporation and the Seller will cause By-Laws of the Company and its the Subsidiaries to, deliver, (or cause to be delivered to Buyer:
(i) a certificate the organizational equivalents of such documents in the case of the Secretary or an Assistant Secretary Subsidiaries), (c) certifying as to the good standing (or equivalent officerjurisdictional equivalent) of the Company certifying that attached thereto are true and complete copies the Subsidiaries under the laws of all resolutions adopted by the board of directors of their respective jurisdictions and each state in which the Company authorizing and each Subsidiary is authorized as a foreign corporation or organization to conduct business and their qualification to conduct business in the execution, delivery State of Delaware and performance each such other state in which the Company and each Subsidiary is authorized as a foreign corporation or organization to conduct business; and (d) certifying as to the signatures and authority of this Agreement and persons signing the Transaction Documents to which the Company is a party, and the consummation related documents on behalf of the transactions contemplated hereby and therebyCompany, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit DF;
(Bvii) the Compliance Certificate referred to in Section 5.1(i);
(viii) a Lock-Up Agreement, substantially in the form of Exhibit I hereto (the “Lock-Up Agreement”) executed by each person listed on Exhibit J hereto, and each such Lock-Up Agreement shall be in full force and effect on the Closing Date Payment by wire transfer Date;
(ix) a certificate evidencing the formation and good standing of immediately available funds to the account designated Company issued by the Seller on Annex ASecretary of State of Delaware, as of a date within three (3) Business Days of the Closing Date;
(x) the Warrant Agent Agreement, duly executed by the Company and American Stock Transfer & Trust Company, LLC; and
(Cxi) such other documents relating to the transactions contemplated by this Agreement as the Purchasers or their counsel may reasonably request, including, upon request: (i) a duly completed and executed counterparts to each of the Transaction Documents to which Buyer is a party;
Internal Revenue Service Form W-9 or W-8BenE and (ii) paythe names and contact information for two authorized persons at the Company, or cause in each case, to be paiddelivered to any requesting Purchaser, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within not less than two (2) Business Days after payment is made for payments prior to be made after the Closing Date.
(b) On or prior to the Closing, each Purchaser shall deliver or cause to be delivered to the Company the following (the “Purchaser Deliverables”):
(i) this Agreement, duly executed by such Purchaser;
(ii) its Subscription Amount, in United States dollars and in immediately available funds, in the amount set forth as the “Purchase Price” indicated below such Purchaser’s name on the applicable signature page hereto under the heading “Aggregate Purchase Price (Subscription Amount)” by wire transfer; and
(Biii) at the Closinga fully completed and duly executed Accredited Investor Questionnaire, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and satisfactory to the lenders Company, and other holders of Indebtedness identified on DRS Book-Entry Questionnaire, if applicable, in forms substantially similar to the Company Indebtedness Payoff Scheduleforms attached hereto as Exhibits C-1 and C-2, respectively.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ribbon Communications Inc.)
Closing Deliveries. Subject to At the terms set forth hereinClosing:
(a) At the Closing, the Seller will deliver, deliver the following to Buyer or cause to be delivered, to Buyerits designees:
(i) a stock certificate evidencing All of the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoSeller’s Required Consents;
(ii) written letters of resignation, effective as Counterparts of the ClosingDeeds, from each of the members of the board of directors of the Acquired Companiesduly executed by Seller (or its relevant Affiliate);
(iii) each A counterpart duly executed by Seller to the ▇▇▇▇ of the deliverables contemplated by Section 2.5(a)Sale;
(iv) A duly executed certification from the Company in accordance with Treasury Regulations Sections 1.1445of non-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of foreign status under Section 897(c)(11445(b)(2) of the Code and proof reasonably satisfactory to Buyer that Code, substantially in the Company shall have provided notice to the IRS in accordance with the provisions form of Treasury Regulations Section 1.897-2(h)(2)Exhibit B hereto;
(v) a good standing certificate (or its equivalent) for each A counterpart duly executed by Seller to the Assignment of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedTransferred Intellectual Property Agreement;
(vi) a certificate Counterparts duly executed by Seller to one or more Lease Termination Agreements;
(vii) A counterpart duly executed by Seller to the Amended and Restated Shared Facilities Agreement;
(viii) A counterpart duly executed by Seller to the Post-Closing Access Agreement, substantially in the form of Exhibit H hereto;
(ix) A duly executed release of the Secretary or an Assistant Secretary (or equivalent officer) of lien with respect to the Acquired Assets under the Seller certifying that attached thereto are true Indenture, in a form reasonably acceptable to Buyer and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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 therebySeller; and
(viix) duly executed counterparts Such other deeds, bills of sale, assignments, agreements, documents, instruments and writings as are required to each be delivered by Seller at or prior to the Closing pursuant to the terms of this Agreement, including the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions certificate contemplated by Section 6.02(c), or as are otherwise reasonably required to comply with the provisions of this Agreement.
(b) At Buyer will deliver the Closing, the Company will, and the following to Seller will cause the Company and or its Subsidiaries to, deliver, or cause to be delivered to Buyerdesignees:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment The Purchase Price by wire transfer of immediately available funds to the account designated or accounts specified by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a partySeller;
(ii) pay, or cause to be paid, on behalf Counterparts of the Seller or the Acquired CompaniesDeeds, the following:duly executed by Buyer (if required);
(Aiii) at the Closing (or if a later due date is applicable with regard A counterpart duly executed by Buyer to the relevant Company Transaction Expense▇▇▇▇ of Sale;
(iv) A counterpart duly executed by Buyer to the Assignment of Transferred Intellectual Property Agreement;
(v) A counterpart duly executed by Buyer to the Amended and Restated Shared Facilities Agreement;
(vi) A counterpart duly executed by Buyer to the Post-Closing Access Agreement, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds substantially in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence form of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing DateExhibit H hereto; and
(Bvii) Such other deeds, bills of sale, assignments, agreements, documents, instruments and writings as are required to be delivered by Buyer at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and or prior to the lenders and other holders Closing Date pursuant to the terms of Indebtedness identified on this Agreement, including the Company Indebtedness Payoff Schedulecertificate contemplated by Section 6.03(c), or as are otherwise reasonably required to comply with the provisions of this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Old Dominion Electric Cooperative)
Closing Deliveries. Subject to On the terms set forth herein:
(a) At the ClosingClosing Date, the Seller will parties shall make, execute, acknowledge and deliver, or cause to be deliveredmade, executed, acknowledged and delivered the legal documents and other items necessary to Buyercarry out the intention of this Agreement, which shall include, without limitation, the following:
(ia) a stock certificate evidencing Registration Rights Agreement substantially in the Sharesform attached hereto as Exhibit B, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;
(ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At a Tax Protection Agreement substantially in the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that form attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments hereto as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.Exhibit C,
(c) Buyer will:a Lock-Up Agreement for a period of up to one year in the form requested by the underwriters of the IPO and customary for initial public offerings,
(id) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) Assignment and Assumption Agreements substantially in the form attached hereto as Exhibit D,
(e) for each Contributing Member receiving OP Units, the OP Agreement (including any amendments thereto approved by the partners in accordance with the terms of such agreement)
(f) all title insurance policies, leases, lease files, letters of credit, contracts, stock certificates, original promissory notes held by an Existing Entity and other indicia of ownership with respect to each Existing Entity that are in the Contributing Member’s possession or that can be obtained through reasonable efforts in the Contributing Member’s capacity as indirect owner of any Existing Entity shall be delivered or made available to the Company;
(Bg) a certificate from each Contributing Member affirming that the representations and warranties made by the Contributing Member pursuant to this Agreement remain true and correct in all material respects as of the Closing Date Payment Date;
(h) if requested by wire transfer the Company, certified copies of immediately available funds all organizational documents for the Contributing Member, together with certified copies of all appropriate limited liability company or limited partnership actions authorizing the execution, delivery and performance by the Contributing Member of this Agreement, any related documents and the Transaction Documents;
(i) evidence reasonably satisfactory to the account designated Company that the lender of any borrowed money secured by a mortgage or deed of trust disclosed in the Seller on Annex ATitle Reports, other than those lenders whose loans are being repaid before or immediately after the Closing, has consented to the transaction as required by any loan document, deed of trust, mortgage or other evidence of indebtedness related to any Property; and
(Cj) duly executed counterparts any other documents related to each the consummation of the Transaction Documents to which Buyer is a party;
(iiConsolidation Transactions, any reallocation of Contributing Member Interests as described in Section 1.01(b) pay, above or cause any of the other transactions contemplated by this Agreement as may be deemed by the Company in its sole and absolute discretion to be paid, on behalf of necessary or desirable to effectuate the Seller or the Acquired CompaniesConsolidation Transactions, the following:
(A) at IPO, and the Closing (or if a later due date is applicable other transactions described herein. Such agreements and instruments together with regard this Agreement are collectively referred to in this Agreement as the relevant Company “Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleDocuments.”
Appears in 1 contract
Sources: Contribution Agreement (Schottenstein Realty Trust, Inc.)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, Buyer shall pay the Seller will deliver, or cause Purchase Price in accordance with this Agreement and shall deliver to be delivered, to BuyerSeller:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer Transaction Documents duly executed by Buyer as described in blank, with all required stock transfer tax stamps affixed thereto;Section 7.3.
(ii) written letters A certificate, in form and substance reasonably satisfactory to Seller, signed by an authorized officer of resignation, effective as of Buyer certifying the Closing, from each of the members of the board of directors of the Acquired Companies;matters described in Section 7.1.
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company A certificate, in accordance with Treasury Regulations Sections 1.1445-2(c)(3) form and 1.897-2(h)substance reasonably satisfactory to Seller, dated as of the Closing Date and signed by an authorized officer of Buyer and Function(x) certifying the Company, certifying that the Shares are not “United States real property interest” within the meaning of matters described in Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement7.4.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered shall deliver to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; andThe Transferred Assets;
(ii) Delivery of all Software which is included in the Transferred Assets shall be made solely by Buyer electronically accessing an online site designated by Seller, and shall not be accomplished by delivery of any physical tangible property.
(iii) Transaction Documents duly executed counterparts by Seller as described in Section 6.4.
(iv) A certificate, in form and substance reasonably satisfactory to each Buyer, signed by the Chief Executive Officer of Seller the matters described in Section 6.1.
(v) A certificate, in form and substance reasonably satisfactory to Buyer, signed by the Secretary of Seller (i) certifying the matters described in Section 6.5, and (ii) certifying and attaching a recent good standing certificate regarding Seller from the office of the Transaction Documents Secretary of States of the State of California and the State of Delaware.
(vi) The Required Consents.
(vii) The Lender Consents.
(viii) Copies of all books, records, files, and documents of Seller relating to which any of the Company Transferred Assets or any Company Subsidiary is a party and such other documents otherwise related or instruments as Buyer reasonably requests and are reasonably necessary to consummate the commercial exploitation of the Transferred Assets or the Business and make effective without limiting the transactions contemplated by this Agreementforegoing, electronic media including complete and accurate copies of all Intellectual Property Embodiments and Documentation. All delivered electronic media shall function as intended.
(c) Buyer will:
(i) at the Closing, deliverSeller shall not disburse, or cause cause, permit or authorize ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ to be delivereddisburse, to the Seller:
(A) evidence cash portion of the purchase Purchase Price except in accordance with disbursement instructions that have been prepared by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment Seller and approved by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleBuyer.
Appears in 1 contract
Closing Deliveries. Subject The Buyer shall have received at or prior to ------------------ the terms set forth hereinClosing each of the following documents:
(a) At a ▇▇▇▇ of sale substantially in the Closingform attached hereto as Exhibit B; ---------
(b) such instruments of conveyance, assignment and transfer, in form and substance satisfactory to the Buyer, as shall be appropriate to convey, transfer and assign to, and to vest in, the Seller will deliverBuyer, or cause good, clear, record and marketable title to be delivered, to Buyer:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoAssets except for the Permitted Liens;
(iic) written letters of resignationall technical data, effective as of formulations, product literature and other documentation relating to the Closing, from each of the members of the board of directors of the Acquired CompaniesMDI Business;
(iiid) each of such contracts, files and other data and documents pertaining to the deliverables contemplated by Section 2.5(a)Assets or the MDI Business as the Buyer may reasonably request;
(ive) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as copies of the Closing Date general ledgers and signed by an officer books of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice account relating to the IRS in accordance MDI Business, and all federal, state and local income, franchise, property and other Tax Returns, or relevant portions thereof, filed by the Seller Entities with respect to the provisions of Treasury Regulations Section 1.897-2(h)(2)Assets since inception;
(vf) a good standing certificate (or its equivalent) for each such certificates of the Acquired Companies from the secretary of state or similar Governmental Body Seller's officers and such other documents evidencing satisfaction of the jurisdiction under conditions specified in Section 7 as the applicable Laws in which each of the Acquired Companies is organizedBuyer shall reasonably request;
(vig) a certificate of the Secretary of State of the Commonwealth of Pennsylvania as to the legal existence and good standing of the Seller and a certificate of the Secretary of State of the State of Ohio as to the legal existence and good standing of MDI immediately prior to the Merger;
(h) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each Seller Entity attesting to the incumbency of such Seller's Entity's officers, the authenticity of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this the Agreement.
(b) At the Closing, the Company will, and the Seller will cause authenticity and continuing validity of the Company and its Subsidiaries to, deliver, or cause charter documents delivered pursuant to be delivered to Buyer:Subsection 2.1;
(i) a certificate estoppel certificates from each lessor with respect to the Leases consenting to the assumption of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted such Lease by the board of directors of the Company authorizing the execution, delivery Buyer and performance of this Agreement and the Transaction Documents to which the Company is a party, and the consummation of the transactions contemplated hereby and thereby, and representing that all there are no outstanding claims under any such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby; andLease;
(iij) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.schedules listed in Subsection 7.9;
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(Ak) evidence of compliance with all state and federal environmental, occupational, work place disclosure and right to know laws with respect to the purchase by Buyer of an insurance policy MDI Business;
(l) the “Indemnification Insurance Policy”) Registration Rights Agreement substantially in the form attached hereto as Exhibit DC; ---------
(m) cross receipt executed by the Buyer and the Seller;
(Bn) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each assignment of the Transaction Documents to which Buyer is a partycorporate name Millennium Dynamics, Inc.;
(iio) paysuch other documents, instruments or cause to be paid, on behalf certificates as the Buyer may reasonably request;
(p) certificates of the Seller or Secretaries of State of the Acquired Companies, State of Ohio and the following:
(A) at the Closing (or if a later due date is applicable with regard Commonwealth of Pennsylvania as to the relevant Company Transaction Expense, at such later date), completion of the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing DateMerger; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Sources: Asset Purchase Agreement (Peritus Software Services Inc)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the ClosingClosing (unless otherwise indicated), Seller shall deliver the Seller will deliverfollowing to ▇▇▇▇▇, or cause to be deliveredduly executed and properly acknowledged, to Buyerif appropriate:
(i) a stock certificate evidencing limited warranty deeds to the SharesReal Property, duly endorsed and any properly executed owner's Transfer Tax forms in blank or accompanied by stock powers or other instruments order to effectuate the transfer of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe Real Property to Buyer;
(ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired CompaniesOwner's Affidavit and Gap Undertaking;
(iii) each the Bills of the deliverables contemplated by Section 2.5(a)Sale;
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) Assignment and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)Assumption Agreements;
(v) the Related Agreements to which Seller or an Affiliate of Seller is a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedparty;
(vi) a the Transferable Permits, Material Contracts (other than Material Contracts set forth on Schedule 2.02(l) as updated in accordance with Section 2.02(l) or that are otherwise Excluded Assets in accordance with Section 2.02(l)), Emergency Preparedness Agreements, Specified Shared Contracts, Contracts set forth on Schedule 2.01(n)(i) as updated in accordance with Section 2.01(n) and the JAF NDT, which shall be delivered to Buyer at the Facility or such other location as Buyer shall reasonably request;
(vii) the Seller Guarantee;
(viii) the officer's certificate of contemplated by Section
(ix) Seller's FIRPTA Affidavit;
(x) copies, certified by the Secretary or an any Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies Seller, of all limited liability company resolutions adopted by the board of directors of the Seller authorizing the execution, execution and delivery and performance of this Agreement and the Transaction Documents Related Agreements and all of the other agreements and instruments to which the be executed and delivered by Seller is a partyin connection herewith and therewith, and the consummation of the transactions contemplated hereby Transaction;
(xi) a certificate of good standing with respect to Seller, issued by the Secretary of State of the State of Delaware as of a recent date; and
(xii) such other agreements, consents, documents, instruments and therebywritings as are reasonably required to be delivered by Seller at or prior to the Closing Date pursuant to this Agreement or otherwise reasonably required or in connection herewith, and that including all such resolutions are in full force and effect and are all the resolutions adopted other instruments of sale, transfer, conveyance, assignment or assumption as Buyer or its counsel may reasonably request in connection with the transactions contemplated hereby sale and thereby; and
(vii) duly executed counterparts to each transfer of the Transaction Documents Transferred Assets or the Transaction; provided that this Section 2.09(a)(xii) shall not require Seller to which prepare or obtain any surveys or title insurance relating to the Seller is a party Real Property or to obtain and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreementdeliver any legal opinions.
(b) At the Closing, Buyer shall deliver the Company willfollowing to Seller, duly executed and the Seller will cause the Company and its Subsidiaries toproperly acknowledged, deliver, or cause to be delivered to Buyerif appropriate:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the executionPurchase Price, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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 accordance with the transactions contemplated hereby and thereby; andSection
(ii) duly executed counterparts to each the Bills of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit DSale;
(Biii) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; andAssignment and Assumption Agreements;
(Civ) duly executed counterparts to each of the Transaction Documents Related Agreements to which Buyer or an Affiliate of Buyer is a party;
(iiv) paythe officer's certificate contemplated by Section
(vi) copies, certified by the Secretary or cause any Assistant Secretary of Buyer, of limited liability company resolutions authorizing the execution and delivery of this Agreement and the Related Agreements and all of the other agreements and instruments to be paidexecuted and delivered by Buyer in connection herewith and therewith, on behalf and the consummation of the Seller or the Acquired Companies, the following:Transaction;
(Avii) at a certificate of good standing with respect to ▇▇▇▇▇, issued by the Closing (or if Secretary of State of the State of Pennsylvania as of a later due date is applicable with regard to the relevant Company Transaction Expense, at such later recent date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(Bviii) such other agreements, consents, documents, instruments and writings as are reasonably required to be delivered by either Buyer at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and or prior to the lenders and Closing Date pursuant to this Agreement or otherwise reasonably required in connection herewith, including all such other holders instruments of Indebtedness identified on assumption as Seller or its counsel may reasonably request in connection with the Company Indebtedness Payoff Schedulepurchase of the Transferred Assets or the Transaction.
Appears in 1 contract
Sources: Asset Purchase Agreement
Closing Deliveries. Subject to At the terms set forth hereinClosing:
(a) At the Closing, the Seller will shall deliver, or cause to be delivered, to Buyer:
(i) a stock certificate evidencing an instrument of assignment, in substantially the form attached hereto as Exhibit A, executed by Seller assigning to Buyer all of Seller's Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;
(ii) written letters of resignationan Assignment and Assumption Agreement with respect to the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Liability and a Release from the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Liability in substantially the form attached hereto as Exhibit B, effective as of executed by the Closing, from each of the members of the board of directors of the Acquired CompaniesCompany and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇;
(iii) each of an Escrow Agreement, in substantially the deliverables contemplated form attached hereto as Exhibit C (the "Escrow Agreement"), executed by Section 2.5(a)Seller;
(iv) certification from a Noncompete Agreement, in substantially the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)form attached hereto as Exhibit D, dated as of the Closing Date and signed executed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)Seller;
(v) a good standing certificate (of the Secretary of the Company certifying, as complete and accurate as of the Closing, attached copies of the Organizational Documents and a Certificate of Good Standing thereof, certifying and attaching all requisite resolutions or its equivalent) for actions of the Company's board of directors approving the execution and delivery of each of the Acquired Companies from Transaction Documents and the secretary of state or similar Governmental Body consummation of the jurisdiction under Transactions and certifying to the applicable Laws in which each incumbency of the Acquired Companies is organizedofficers of the Company executing the Transaction Documents;
(vi) a certificate written resignations of the Secretary or an Assistant Secretary (or equivalent officer) officers of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by Company other than the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.individuals set forth on Schedule 2.6(a)(vi);
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, shall deliver, or cause to be delivered, to the Seller:
(Ai) evidence of the purchase Closing Payment;
(ii) the Escrow Agreement, executed by Buyer of an insurance policy Buyer;
(iii) the “Indemnification Insurance Policy”) in the form Lease Agreement attached hereto as Exhibit DE, executed by Buyer;
(Biv) a certificate of the Closing Date Payment by wire transfer Secretary of immediately available funds to Buyer certifying, as complete and accurate as of the account designated by Closing, attached copies of the Seller on Annex A; and
(C) duly executed counterparts to Organizational Documents and a Certificate of Good Standing thereof, certifying and attaching all requisite resolutions or actions of Buyer's board of directors approving the execution and delivery of each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf and the consummation of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard Transactions and certifying to the relevant Company incumbency of the officers of Buyer executing the Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleDocuments.
Appears in 1 contract
Sources: Stock Purchase Agreement (Security National Financial Corp)
Closing Deliveries. Subject to the terms set forth herein:
(ai) At the Closing, the Seller each PMG Company, as applicable, will deliver, deliver or cause to be delivered, delivered to Buyerthe Buyer the following items:
(A) the Purchased Assets, including good and sufficient instruments of transfer transferring to the Buyer all of each PMG Company’s right, title and interest in and to the Purchased Assets, as applicable;
(B) an assignment to the Buyer of [each applicable assumed lease], in form and substance reasonably satisfactory to the Buyer;
(C) the Employment Agreements, as executed by each of the PMG Executives;
(D) the Lock-Up Agreements, as executed by each Seller;
(E) the Escrow Agreement as executed by PMG, each Seller and the Escrow Agent;
(F) all of the third-party consents and approvals set forth on Schedule 3.2(c), in form and substance reasonably satisfactory to the Buyer, without payment by or liability to the PMG Companies or the Buyer (the “Required Consents”);
(G) (i) a stock certificate evidencing copy of the Sharesmanager, duly endorsed in blank or accompanied member, director and/or shareholder resolutions by stock powers or other instruments which all actions on the part of transfer duly executed in blankeach PMG Company necessary to approve this Agreement, with all required stock transfer tax stamps affixed thereto;
the Ancillary Agreements and the transactions contemplated hereby and thereby were taken, certified by the Secretary of each PMG Company; (ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and an incumbency certificate signed by an officer or officers of each PMG Company certifying the signature and office of each officer executing this Agreement, the Ancillary Agreements or any other agreement, certificate or other instrument executed pursuant hereto or thereto; (iii) a copy of the Operating Agreement of each PMG Company, certifying that certified by the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) Secretary of the Code respective PMG Companies; and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each PMG Company, issued as of a date which is no more than seven (7) Business Days before the Acquired Companies from Closing Date, by the secretary Secretary of state State, or other similar Governmental Body office, for the PMG Companies’ jurisdiction of the formation and any other jurisdiction under the applicable Laws in which each of the Acquired PMG Companies is organizedrequired to be qualified to do business as a foreign entity;
(viH) a certificate legal opinion of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying type and nature that attached thereto are true is standard and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents customary with respect to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.from H.E.
Appears in 1 contract
Sources: Asset Purchase Agreement (Global Eagle Entertainment Inc.)
Closing Deliveries. Subject Prior to the terms set forth herein:
(a) At or at the Closing, Seller and/or the Seller will deliver, or cause to be delivered, to Buyer:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;
(ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company Target Companies shall have provided notice to delivered the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyerfollowing closing documents:
(i) a certificate signed by an executive officer of Seller, dated as of the Secretary or Closing Date, to the effect that the conditions specified in Section 7.2(a), Section 7.2(b) and Section 7.2(c) have been satisfied.
(ii) a certificate, in form and substance reasonably acceptable to Buyer, of an Assistant Secretary (or equivalent officer) authorized officer of Seller, dated as of the Company Closing Date, certifying that attached thereto are true to the accuracy of, and complete attaching, (A) copies of all Seller’s and the Target Companies’ organizational documents, (B) a copy of the resolutions adopted by the of Seller’s board of directors authorizing the execution and delivery of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, and the consummation of the transactions contemplated hereby Transactions, (C) the incumbency and therebysignatures of the officers of Seller executing this Agreement, the Transaction Documents and any other certificate or document delivered in connection herewith, (D) good standing certificates of Seller and the US Target Company from their respective states of incorporation as of a date not more than five (5) Business Days prior to the Closing Date), and (E) a certificate from the Israeli Registrar of Companies, confirming that the Israeli Target Company is incorporated and registered under Israeli Law with the status of “active”, as of a date not more than five (5) Business Days prior to the Closing Date;
(iii) written resignations, or other evidence of removal, of (A) each of the directors of the Target Companies and (B) those officers of the Target Companies in each case as designated by Buyer;
(iv) true, correct and complete invoices reflecting all Sale Expenses and the Payoff Letters with respect to the Closing Date Debt;
(v) evidence that all agreements with Affiliates set forth on Schedule 7.2(d)(v) have been terminated;
(vi) duly executed Transition Services Agreement;
(vii) the corporate books and records, and stock register/transfer ledgers of the Target Companies;
(viii) confirmation that the employment agreements with Ran ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇ ▇▇▇ remain in place and such resolutions are in full force individuals have not provided notice of an intention to resign;
(ix) a copy of the IIA Notice, duly executed by the Israeli Target Company (and effect to the extent required, by the US Target Company);
(x) a copy of the BIRD Notice, duly executed by the Israeli Target Company (and are all to the resolutions adopted extent required, by the US Target Company);
(xi) a flash drive or other digital media device containing the documents that were made available at the virtual data room hosted by Hunton ▇▇▇▇▇▇▇ ▇▇▇▇▇ in connection with the transactions contemplated hereby and therebyby this Agreement; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(Axii) evidence of release of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) security interests in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each intellectual property of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf Target Companies in favor of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleHSBC Bank USA.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:4.1 Deliveries by Vendor at Closing [Deleted for Confidentiality Purposes]
(a) At the Closing, the Seller will deliver, A certificate or cause to be delivered, to Buyer:
(i) a stock certificate evidencing certificates representing the Shares, duly endorsed in blank for transfer by Vendor or accompanied by stock powers or other instruments a power of attorney to transfer such shares to Purchaser duly executed in blank, with all required stock transfer tax stamps affixed theretoby Vendor;
(iib) written letters A certified copy of resignation, effective as a directors resolution of the Company approving of and authorizing the transfer of the Shares from Vendor to Purchaser;
(c) A new share certificate issued in the name of Purchaser in respect of the Shares;
(d) A certificate of an officer or director of Vendor in the form specified in Schedule "M" in respect of the matters referred to in Clauses, 3.1(a), 3.1(b) and 3.1(c);
(e) Resignations of all directors and officers of the Company from all such positions and offices within the Company and a release from each such individual pursuant to which he or she releases all Claims that he or she has or may at any time have against the Company, which shall be in the form set forth in Schedule "N"; 195786\614696.v6
(f) Releases and registerable discharges or no interest letters in respect to all Security Interests granted by Vendor, or the Company in respect of the Assets or the Shares or otherwise requested by Purchaser a reasonable time prior to the Closing Time;
(g) [Deleted for Confidentiality Purposes]
(h) [Deleted for Confidentiality Purposes]
(i) [Deleted for Confidentiality Purposes]
(j) Evidence satisfactory to Purchaser acting reasonably that the entire beneficial right, title, estate and interest of the [Deleted for Confidentiality Purposes] in and to the Assets has been transferred and assigned to the Company, free and clear of all Encumbrances granted through or under the [Deleted for Confidentiality Purposes] or its Affiliates other than those in respect of which a discharge, release or no interest letter is delivered at or prior to Closing;
(k) The Closing Statement;
(l) The original minute books of the Company;
(m) A certificate of Vendor confirming that the conditions precedent set forth in Clause 3.2 have been waived by Vendor or satisfied; and
(n) Receipts for that portion of the Adjusted Purchase Price payable at Closing.
4.2 Deliveries by the Purchaser at Closing [Deleted for Confidentiality Purposes]
(a) Pay to Vendor in the manner contemplated in Clause 2.4, from that portion of the Adjusted Purchase Price payable at Closing;
(b) Deliver to Vendor a certificate of an officer or director of the Purchaser, in the form of Schedule "M" in respect of matters referred to in Clauses 3.2(b) and 3.2(c);
(c) Deliver releases in favour of each of the members directors and officers of the Company, releasing such individual from all Claims that the Company has or may at any time have against such individual in his or her capacity as an officer or director thereof, which shall be in the form set forth in Schedule "N";
(d) Deliver a certified copy of a resolution of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller Purchaser authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, and the consummation of the transactions Transaction contemplated hereby herein, along with a certificate executed by an officer of Purchaser certifying that such copy is true, correct and thereby, complete and that all such resolutions are in full force were duly adopted and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby; andhave not been amended or rescinded;
(viie) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) Deliver a certificate of Purchaser confirming that the Secretary conditions precedent set forth in Clause 3.1 have been waived by Purchaser or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit Dsatisfied;
(Bf) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and[Deleted for Confidentiality Purposes]
(Cg) duly executed counterparts to each of Deliver the Transaction Documents to which Buyer is a party;Parental Guarantee.
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:4.3 [Deleted for Confidentiality Purposes]
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date 4.4 [Deleted for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.Confidentiality Purposes]
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, Each of the Seller will deliverParties shall have executed (where applicable) and delivered, or cause caused to be delivered, to Buyer:
Purchaser: (i) a stock certificate evidencing the SharesPurchased Assets, duly endorsed in blank or accompanied the manner and form, and to the locations reasonably specified by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;
Purchaser; (ii) written letters of resignationthe Escrow Agreement, effective executed and delivered by Seller Parent and the Escrow Agent; (iii) the Transition Services Agreement in substantially the form attached hereto as of Exhibit C (the Closing, from “Transition Services Agreement”); (iv) the Ancillary Agreements to which it is a party; (v) evidence reasonably satisfactory to Purchaser that each of the members of the board of directors of the Acquired Companies;
(iiiRequired Consents set forth on Schedule 7.2(b) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
has been obtained; (vi) a certificate of its secretary, setting forth the Secretary or an Assistant Secretary (or equivalent officer) certified articles of the Seller certifying that attached thereto are true incorporation, bylaws and complete copies resolutions of all resolutions adopted by the its board of directors of the Seller and shareholders authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, other documents contemplated hereby and the consummation of the transactions contemplated hereby and thereby, and certifying that all (A) such articles of incorporation, bylaws, and resolutions have not been amended or rescinded and are in full force and effect effect, (B) its officers executing this Agreement and other documents delivered pursuant to this Agreement are all incumbent officers and the resolutions adopted specimen signatures on the certificate are their genuine signatures and (C) the conditions specified in connection with the transactions contemplated hereby and therebythis Section 7.2 have been satisfied; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of good standing or similar certificate for Seller Parent from the Secretary or an Assistant Secretary applicable Governmental Authority in Delaware and California; and (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(Aviii) evidence of reasonably satisfactory to Purchaser that the purchase by Buyer of an insurance policy Encumbrances (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) other than the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(CPermitted Encumbrances) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which Purchased Assets have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedulebeen released.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will deliver, deliver or cause to be delivereddelivered to the Purchaser, to Buyerfor itself and as agent for the Designated Affiliates:
(i) a stock certificate evidencing bill of sale in the Sharesform of Ex▇▇▇▇t B (the “Bill of Sale”), duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto▇▇ ▇he Seller;
(ii) written letters an assignment and assumption agreement in the form of resignationExhibit C (the “Assignment and Assumption Agreement”), effective as of duly executed by the Closing, from each of the members of the board of directors of the Acquired CompaniesSeller;
(iii) each a share sale and transfer agreement in respect of the deliverables contemplated Shares in the form of Exhibit D (the “Share Transfer Agreement”), duly executed and notarized by Section 2.5(a)the Share Selling Affiliate;
(iv) certification from such deeds, documents, instruments and actions as are necessary or appropriate to effect the Company valid sale and transfer of the Shares to the Purchaser or its Designated Affiliate, duly executed by the Share Selling Affiliate, and/or the managing director or the Acquired Company, as required pursuant to German Law;
(v) assignments of all Purchased Intellectual Property in the forms of Exhibit E-1 and E-2 (collectively, the “IP Assignments”) and License of Shared Intellectual Property in the form of Exhibit E-3 (the “IP License Agreement”), duly executed by the Seller;
(vi) for each parcel of Owned Real Property, a recordable warranty deed or such other appropriate document or instrument of transfer in accordance with Treasury Regulations Sections 1.1445-2(c)(3local custom, each in form and substance reasonably satisfactory to the Purchaser and its counsel and executed by the Seller;
(vii) and 1.897-2(h)a certificate, dated as of the Closing Date and signed Date, executed by an officer the Seller confirming the satisfaction of the Company, certifying that the Shares are not “United States real property interest” within the meaning of conditions specified in Section 897(c)(16.1(a) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(26.1(b);
(vviii) a good standing certificate (or its equivalent) for each the resignations of the managing directors of the Acquired Companies from Company set forth on Schedule 2.9(a)(viii), to the secretary of state or similar Governmental Body of extent that such resignations have been requested in writing by the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedPurchaser not less than two (2) Business Days prior to Closing;
(viix) a certificate transition services agreement in the form of Exhibit F (the “Transition Services Agreement”), duly executed by the Seller;
(x) a supply agreement in the form of Exhibit G (the “TBT Supply Agreement”), duly executed by the Seller;
(xi) a supply agreement in the form of Exhibit H (the “TOT Supply Agreement”), duly executed by the Seller;
(xii) a supply agreement in the form of Exhibit I (the “TPP/LPE Supply Agreement”), duly executed by the Seller;
(xiii) an assignment of the Secretary or an Assistant Secretary environmental indemnity from Ciba contained in the Ciba Basic Agreement in the form of Exhibit J (or equivalent officerthe “Ciba Environmental Indemnity Assignment”);
(xiv) a copy of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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 therebyApproval Order; and
(viixv) duly executed counterparts to each evidence that notice of termination of the Transaction Documents to which Acquired Company’s participation in the Seller is a party domination and such other documents or instruments as Buyer reasonably requests profit and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreementloss pooling agreements has been made in accordance with German Law.
(b) At the Closing, the Company Purchaser will, for itself and the Seller will cause the Company and as agent for its Subsidiaries toDesignated Affiliate, deliver, deliver or cause to be delivered to Buyerthe Seller, for itself and as agent for the Share Selling Affiliate:
(i) a certificate of the Secretary or an Assistant Secretary Initial Cash Consideration, fifty percent (or equivalent officer50%) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors aggregate amount of the Company authorizing the execution, delivery and performance of this Agreement Trade Accounts Payable Adjustment Payment and the Transaction Documents to which the Company is a partyShared Accounts Payable Adjustment Payment, and the consummation of the transactions contemplated hereby Accrued Payroll 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Benefits Adjustment Payment by wire transfer of immediately available funds to in U.S. dollars in the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a partyamount and manner specified in Section 2.5(b);
(ii) paythe Assignment and Assumption Agreement, or cause to be paid, on behalf of duly executed by the Seller or the Acquired Companies, the following:Purchaser;
(Aiii) at the Closing Bill of Sale, duly executed by ▇▇▇ Purchaser;
(iv) the Share Transfer Agreement, duly executed and notarized by the Purchaser or its Designated Affiliate, as applicable;
(v) the IP Assignments, if any, that call for a later due date is applicable with regard to signature by the relevant Company Transaction ExpensePurchaser and/or its Designated Affiliates, at duly executed by the Purchaser and/or such later date)Designated Affiliates, as applicable, and the Company Transaction Expenses IP License Agreement, duly executed by wire transfer the Purchaser;
(vi) a certificate, dated as of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date, duly executed by the Purchaser confirming the satisfaction of the conditions specified in Sections 6.2(a) and 6.2(b);
(vii) the Transition Services Agreement, duly executed by the Purchaser;
(viii) the TBT Supply Agreement, duly executed by the Purchaser;
(ix) the TOT Supply Agreement, duly executed by the Purchaser;
(x) the TPP/LPE Supply Agreement, duly executed by the Purchaser; and
(Bxi) at the ClosingCiba Environmental Indemnity Assignment, duly executed by the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleAcquired Company.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) A. At the Closing, Seller shall deliver to Purchaser, executed and acknowledged, as applicable:
i. The Deeds;
ii. A general ▇▇▇▇ of sale for the Seller will deliverPersonal Property, or cause to be deliveredin the form of Exhibit 8(A)(ii), conveying as more particularly set forth therein, to Buyer:
(i) a stock certificate evidencing Purchaser all of Seller’s right, title and interest in and to the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoPersonal Property;
iii. An assignment and assumption, in the form of Exhibit 8(A)(iii), which provides for, as more particularly set forth therein, the assignment by Seller of all of Seller’s right, title and interest as landlord in and to the Leases and the assumption by Purchaser of all of Seller’s obligations as landlord under the Leases arising from and after the Closing Date (ii) written letters the “Assignment and Assumption of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(aLeases”);
(iv) certification . An estoppel certificate from the Company Condominium Board pursuant to Section 2.2.2.4 of the By-Laws (the “Condominium Estoppel”): (1) setting forth the date and amounts to which Common Charges and any additional Common Charges (including Special Assessments) have been paid, and the amount of any unpaid indebtedness owed under the Condominium Documents and (2) acknowledging that there are not, to the best knowledge of the Condominium Board, any uncured defaults or violations by any Unit owner under the Condominium Documents or specifying any defaults or violations if any are claimed;
v. Executed originals of all Leases, Brokerage Agreements and Surviving Contracts, or copies thereof to the extent executed originals thereof are not in accordance with Treasury Regulations Sections 1.1445-2(c)(3Seller’s or property manager’s possession;
vi. A certification of nonforeign status, in form required by Internal Revenue Code (the “Code”) Section 1445 and 1.897-2(hthe regulations issued thereunder;
vii. Notice letters to the Tenants, in the form of Exhibit 8(A)(vii) (the “Tenant Notice Letters”), dated to be prepared by Purchaser;
viii. The Tenant Estoppels (as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1hereinafter defined) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance extent delivered under Article 10 hereof;
ix. A Real Property Transfer Tax Return with respect to the provisions of Treasury Regulations Section 1.897-2(h)(2New York City Real Property Transfer Tax (the “RPT Form”);
x. A New York State Real Estate Transfer Tax Return and Credit Line Mortgage Certificate with respect to the New York State Real Estate Transfer Tax (v) a the “Form TP-584”);
xi. A New York State Real Property Transfer Report Form RP-5217 NYC (the “RP-5217”);
xii. A Department of Housing Preservation and Development Affidavit in Lieu of Registration Statement (the “Non-Multiple Dwelling Affidavit”);
xiii. Evidence of authority, good standing certificate (if applicable) and due authorization of Seller to enter into the within transaction and to perform all of its obligations hereunder, including, without limitation, the execution and delivery of all of the closing documents required by this Agreement, and setting forth such additional facts, if any, as may be needed to show that the transaction is duly authorized and is in conformity with Seller’s organizational documents and applicable laws and to enable the Title Insurer to omit all exceptions regarding Seller’s standing, authority and authorization;
xiv. To the extent in Seller’s or its equivalentproperty manager’s possession or control (a) for each of those transferable licenses and permits, authorizations and approvals pertaining to the Acquired Companies from Premises which are not posted at the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a partyPremises, and the consummation of the transactions contemplated hereby (b) all transferable guarantees and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted warranties which Seller has received in connection with any work or services performed or equipment installed in and improvements to the transactions contemplated hereby Premises;
xv. To the extent available at Closing, documentation as reasonably required by the Purchaser to calculate the Overage Rent due and thereby; and
(vii) duly executed counterparts to each of owing after the Transaction Documents to which the Closing or if not available then Seller is will deliver same within a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At reasonable time following the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:;
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are xvi. A title affidavit in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in substantially the form attached hereto as Exhibit D8(A)(xvi) (the “Title Affidavit”);
xvii. A closing statement (B) the “Closing Date Payment by wire transfer Statement”);
xviii. Keys to locks at the Property in the possession or control of immediately available funds to the account designated by the Seller on Annex Aor its property manager; and
xix. The Tenant Deposits (Chereinafter defined) duly executed counterparts held by Seller in the form of cash, at Seller’s option, either (i) in the form of a cashier’s check issued by a bank reasonably acceptable to each of the Transaction Documents to which Buyer is a party;
Purchaser, or (ii) payas part of an adjustment to the Purchase Price. In the event one or more Tenant Deposits are in the form of a letter of credit, or then Seller shall deliver at Closing (subject to the following sentence) the original letter(s) of credit with all amendments thereto (collectively, the “Letters of Credit”), together with documentation sufficient to cause the Letters of Credit to be paidtransferred or assigned to Purchaser, on behalf or, with respect to any of the Letters of Credit that are not transferable, replaced, upon approval thereof by the issuer of the letter(s) of credit. Seller or shall use commercially reasonable efforts to cause the Acquired CompaniesLetters of Credit that are not transferable to be re-issued to Purchaser promptly following the Closing Date, it being understood that the following:
(A) re-issuance of such Letters of Credit shall not be a condition precedent to Purchaser’s obligation hereunder. Any fees levied by the issuer of any of the Letters of Credit shall be paid by Purchaser, which obligation shall survive the Closing as to those non-transferable Letters of Credits which are not transferred to Purchaser at the Closing (collectively, the “Non-Transferable Letters of Credit”). Seller shall cooperate with Purchaser post-closing to transfer the Non-Transferable Letters of Credit, and until the Non-Transferable Letters of Credit shall be transferred to Purchaser or if a later due date is applicable with regard replaced, as aforesaid, Purchaser may request Seller to draw upon the same and deliver the proceeds to Purchaser or return the same to the relevant Company Transaction Expenseapplicable Tenant, at in each case upon Purchaser’s written instruction, and Purchaser shall indemnify, defend and hold Seller harmless from any liability, claims, actions, actual damages, judgments, penalties, actual costs, and reasonable expenses, including reasonable attorneys’ fees, related to any claims arising from any such later datedraw by Seller;
xx. An assignment and assumption, in the form of Exhibit 8(A)(xx), which provides for, as more particularly set forth therein, the Company Transaction Expenses assignment by wire transfer Seller of immediately available funds all of Seller’s right, title and interest in the amounts and to the payees identified on Surviving Contracts and the Company Transaction Expense Schedule. Buyer shall provide evidence assumption by Purchaser of payment on all of Seller’s obligations under the Surviving Contracts arising from and after the Closing Date (the “Assignment and Assumption of Surviving Contracts”);
xxi. A Form 1099-S Statement for the payments which have Recipient of Proceeds from Real Estate Transaction;
xxii. The No-Action Letter (hereinafter defined);
xxiii. Any SNDAs, if obtained pursuant to be made on such date and within two (2Section 10(B) Business Days after payment is made for payments to be made after the Closing Datehereunder; and
(B) xxiv. Such other instruments or documents that by the terms of this Agreement are to be delivered by Seller at Closing or that may be reasonably necessary to effect the consummation of the transactions which are the subject of this Agreement.
B. At the Closing, Purchaser shall deliver to Seller, executed and acknowledged, as applicable:
i. The balance of the Estimated Company Indebtedness Purchase Price (i.e., the Purchase Price, less the Deposit and the interest earned thereon) and all other amounts payable by wire transfer Purchaser to Seller at the Closing pursuant to this Agreement;
ii. The Assignment and Assumption of immediately available funds in Leases;
iii. The Tenant Notice Letters;
iv. The RPT Form;
v. The RP-5217;
vi. The Form TP-584;
vii. The Assignment and Assumption of Surviving Contracts;
viii. Evidence of authority, good standing (if applicable) and due authorization of Purchaser to enter into the amounts within transaction and to perform all of its obligations hereunder, including, without limitation, the lenders execution and delivery of all of the closing documents required by this Agreement, and setting forth such additional facts, if any, as may be needed to show that the transaction is duly authorized and is in conformity with Purchaser’s organizational documents and applicable laws;
ix. The Closing Statement; and
x. Such other holders instruments or documents that by the terms of Indebtedness identified this Agreement are to be delivered by Purchaser at Closing or that may be reasonably necessary to effect the consummation of the transactions which are the subject of this Agreement.
C. Subject to Section 16(D) hereof, the acceptance of the Deeds by Purchaser shall be deemed to be full performance of, and discharge of, every agreement and obligation on Seller’s part to be performed under this Agreement, except for such matters which are expressly stated in this Agreement to survive the Company Indebtedness Payoff ScheduleClosing, to the limit of such survival, and any ongoing obligations under the agreements and instruments of assignment delivered at Closing.
D. Seller shall cooperate with Purchaser, at no out-of-pocket cost to Seller, to request reliance letters from IVI Assessment Services, Inc. with respect to the Phase I Environmental Site Assessment and the Property Condition Report, each dated May 2, 2013; provided, however, that the failure of Purchaser to obtain any such reliance letters shall not constitute a default by Seller under this Agreement or have any consequence to Seller under this Agreement, and the delivery of any such reliance letters shall not be a condition to Purchaser’s obligation to consummate the Closing.
Appears in 1 contract
Sources: Sale Purchase Agreement (American Realty Capital New York Recovery Reit Inc)
Closing Deliveries. Subject to the terms set forth herein:
(a) At On or prior to the Closing, the Seller will deliverCompany shall issue, deliver or cause to be delivered, delivered to Buyer:the Purchaser the following (the “Company Deliverables”):
(i) a stock certificate evidencing the Sharesthis Agreement, duly endorsed in blank or accompanied executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe Company;
(ii) written letters facsimile copies or other evidence reasonably satisfactory to the Purchaser of resignation(x) non-certificated shares of Common Stock, effective free and clear of all restrictive and other legends (except as provided in Section 4.1(b) hereof), evidencing the Common Shares subscribed for by the Purchaser hereunder, registered in the name of the ClosingPurchaser as set forth on the Stock Certificate Questionnaire included as Exhibit C-2 hereto, from each and (y) non-certificated shares of Preferred Stock, free and clear of all restrictive and other legends (except as provided in Section 4.1(b) hereof), evidencing the Preferred Shares subscribed for by the Purchaser hereunder, registered in the name of the members of the board of directors of the Acquired CompaniesPurchaser;
(iii) each facsimile copy of the deliverables contemplated Warrant, executed by the Company and registered in the name of the Purchaser as set forth on the Stock Certificate Questionnaire included as Exhibit C-2 hereto, pursuant to which the Purchaser shall have the right to acquire such number of Warrant Shares determined in accordance with Section 2.5(a2.1(a), on the terms set forth therein, with the original Warrant delivered within three (3) Trading Days of Closing;
(iv) certification from the a legal opinion of Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)Counsel, dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) substantially in the form attached hereto as Exhibit D, executed by such counsel and addressed to the Purchaser and the Placement Agent;
(Bv) the Registration Rights Agreement, duly executed by the Company;
(vi) duly executed Irrevocable Transfer Agent Instructions instructing the Transfer Agent to deliver, on an expedited basis, evidence of shares in uncertificated book-entry form evidencing the Common Shares and the Preferred Shares acquired by the Purchaser as set forth on the Purchaser’s signature page hereto, registered in the name of the Purchaser;
(vii) a certificate of the Secretary of the Company (the “Secretary’s Certificate”), dated as of the Closing Date Payment Date, (a) certifying the resolutions adopted by wire transfer the Board of immediately available funds Directors of the Company or a duly authorized committee thereof approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Securities, (b) certifying the current versions of the certificate or articles of incorporation, as amended (including the Preferred Stock Articles of Amendment), and bylaws of the Company and (c) certifying as to the account designated signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company, in the form attached hereto as Exhibit F;
(viii) the Compliance Certificate referred to in Section 5.1(k);
(ix) a certificate evidencing the existence and good standing of the Company issued by the Seller on Annex AClerk of the VSCC, as of a date within three (3) Business Days of the Closing Date;
(x) a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company is qualified to do business as a foreign corporation, as of a date within three (3) Business Days of the Closing Date;
(xi) [reserved]; and
(Cxii) a certified copy of the certificate or articles of incorporation, as certified by the Clerk of the VSCC, as of a date within three (3) Business Days of the Closing Date.
(b) On or prior to the Closing, the Purchaser shall deliver or cause to be delivered to the Company the following (the “Purchaser Deliverables”):
(i) this Agreement, duly executed counterparts to each of the Transaction Documents to which Buyer is a partyby such Purchaser;
(ii) payits Subscription Amount, or cause to be paidin United States dollars and in immediately available funds, in the amount set forth below the Purchaser’s name on behalf of the Seller or applicable signature page hereto under the Acquired Companiesheading “Aggregate Purchase Price (Subscription Amount)”, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in accordance with the Company’s written instructions;
(iii) the Registration Rights Agreement, duly executed by the Purchaser;
(iv) a fully completed and duly executed Selling Stockholder Questionnaire in the amounts and form attached as Annex B to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing DateRegistration Rights Agreement; and
(Bv) at a fully completed and duly executed Accredited Investor Questionnaire, satisfactory to the ClosingCompany, the Estimated Company Indebtedness by wire transfer of immediately available funds and Stock Certificate Questionnaire in the amounts forms attached hereto as Exhibits C-1 and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleC-2, respectively.
Appears in 1 contract
Sources: Securities Purchase Agreement (Blue Ridge Bankshares, Inc.)
Closing Deliveries. Subject to the terms set forth herein:
(a) At On or prior to the ClosingClosing (or at such other time as may be specifically referred to below), the Seller will deliverCompany shall issue, deliver or cause to be delivered, delivered to Buyer:each Purchaser the following (the “Company Deliverables”):
(i) a stock certificate evidencing the Sharesthis Agreement, duly endorsed in blank or accompanied executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe Company;
(ii) written letters one or more certificates (or, if consented to by such Purchaser, reasonable evidence of resignationissuance by book entry) evidencing a number of shares of Preferred Stock set forth on such Purchaser’s signature page to this Agreement, effective as registered in the name of such Purchaser, and evidence of the Closing, from each filing and acceptance of the members Certificate of Designation by the Secretary of State of the board State of directors of the Acquired CompaniesDelaware;
(iii) each a Warrant, duly executed by the Company, registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to the aggregate Stated Value of the deliverables contemplated number of shares of the Preferred Stock set forth on such Purchaser’s signature page to this Agreement, divided by Section 2.5(a)the Warrant Strike Price, multiplied by 33.3%, and rounded to the nearest whole Warrant, subject to adjustment;
(iv) certification from the a legal opinion of Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)Counsel, dated as of the Closing Date and signed in the form attached hereto as Exhibit D, executed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code such counsel and proof reasonably satisfactory to Buyer that the Company shall have provided notice addressed to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)Purchasers and B. ▇▇▇▇▇ Securities, Inc.;
(v) a good standing certificate (or its equivalent) for each of duly executed Irrevocable Transfer Agent Instructions acknowledged in writing by the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedTransfer Agent;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller Company (the “Secretary’s Certificate”), dated as of the Closing Date, (a) certifying that attached thereto are true and complete copies of all the resolutions adopted by the board Board of directors Directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is Company or a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective authorized committee thereof approving the transactions contemplated by this Agreement.
Agreement and the other Transaction Documents and the issuance of the Preferred Stock, the Warrants and the Warrant Shares, (b) At certifying the Closing, current versions of the Company will, Restated Certificate of Incorporation and the Seller will cause By-Laws of the Company and its the Subsidiaries to, deliver, (or cause to be delivered to Buyer:
(i) a certificate the organizational equivalents of such documents in the case of the Secretary or an Assistant Secretary Subsidiaries), (c) certifying as to the good standing (or equivalent officerjurisdictional equivalent) of the Company certifying that attached thereto are true and complete copies the Subsidiaries under the laws of all resolutions adopted by the board of directors of their respective jurisdictions and each state in which the Company authorizing and each Subsidiary is authorized as a foreign corporation or organization to conduct business and their qualification to conduct business in the execution, delivery State of Delaware and performance each such other state in which the Company and each Subsidiary is authorized as a foreign corporation or organization to conduct business; and (d) certifying as to the signatures and authority of this Agreement and persons signing the Transaction Documents to which the Company is a party, and the consummation related documents on behalf of the transactions contemplated hereby and therebyCompany, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit DF;
(Bvii) the Compliance Certificate referred to in Section 5.1(i);
(viii) a Lock-Up Agreement, substantially in the form of Exhibit I hereto (the “Lock-Up Agreement”) executed by each person listed on Exhibit J hereto, and each such Lock-Up Agreement shall be in full force and effect on the Closing Date Payment by wire transfer Date;
(ix) a certificate evidencing the formation and good standing of immediately available funds to the account designated Company issued by the Seller on Annex ASecretary of State of Delaware, as of a date within three (3) Business Days of the Closing Date;
(x) the Warrant Agent Agreement, duly executed by the Company and American Stock Transfer & Trust Company, LLC;
(xi) evidence that the Certificate of Designation has been duly filed with the Secretary of State of Delaware and has become effective; and
(Cxii) such other documents relating to the transactions contemplated by this Agreement as the Purchasers or their counsel may reasonably request, including, upon request: (i) a duly completed and executed counterparts to each of the Transaction Documents to which Buyer is a party;
Internal Revenue Service Form W-9 or W-8BenE and (ii) paythe names and contact information for two authorized persons at the Company, or cause in each case, to be paiddelivered to any requesting Purchaser, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within not less than two (2) Business Days after payment is made for payments prior to be made after the Closing Date.
(b) On or prior to the Closing, each Purchaser shall deliver or cause to be delivered to the Company the following (the “Purchaser Deliverables”):
(i) this Agreement, duly executed by such Purchaser;
(ii) its Subscription Amount, in United States dollars and in immediately available funds, in the amount set forth under the heading “Aggregate Purchase Price (Subscription Amount)” on the applicable signature page hereto by wire transfer; and
(Biii) at the Closinga fully completed and duly executed Accredited Investor Questionnaire, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and satisfactory to the lenders Company, and other holders of Indebtedness identified on DRS Book-Entry Questionnaire, if applicable, in forms substantially similar to the Company Indebtedness Payoff Scheduleforms attached hereto as Exhibits C-1 and C-2, respectively.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ribbon Communications Inc.)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, Seller or Parent, as applicable, shall deliver to Buyer the Seller will deliver, or cause to be delivered, to Buyerfollowing:
(i) a stock certificate evidencing of status of each of Parent and Seller issued by the Shares, duly endorsed in blank or accompanied by stock powers or other instruments Delaware Secretary of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoState within ten (10) days of the Closing Date;
(ii) written letters of resignation, effective as a joint certificate of the Closing, from each respective Secretaries of Parent and the members General Partner certifying that attached thereto is a true and complete copy of (A) resolutions adopted by the board of directors of the Acquired Companies;
Parent and (iiiB) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller General Partner, in each case authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents to which the Seller or Parent, as applicable, is a party, party and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect effect;
(iii) evidence of the release of all Encumbrances (if any) on the Purchased Assets, other than Permitted Encumbrances;
(iv) a certificate of amendment, duly executed and are all the resolutions adopted in connection prepared for filing with the transactions contemplated hereby Secretary of State of Delaware, for the change of Seller’s name to IG Holdings, LP, which shall be filed by Seller with the Secretary of State of Delaware on or immediately following the Closing Date;
(A) a general b▇▇▇ of sale and therebyassignment for the tangible and intangible personal property included in the Purchased Assets, which shall also contain Buyer’s assumption of the Assumed Liabilities, substantially in the form attached hereto as Exhibit A-1 (the “B▇▇▇ of Sale and Assignment”), duly executed by Seller, and (B) a general b▇▇▇ of sale and assignment for such tangible and intangible personal property of Parent used in the Business as set forth therein, substantially in the form attached hereto as Exhibit A-2 (the “Parent B▇▇▇ of Sale”), duly executed by Parent;
(vi) one or more assignments (as determined by Buyer) of the trademarks, trade names and other items of registered Purchased Intellectual Property and related Intellectual Property Registrations, in such form as Buyer may reasonably request (the “IP Assignments”), duly executed by Seller and the General Partner or Parent, as applicable;
(vii) original certificates of title (or equivalent documents) for all vehicles of Seller included in the Purchased Assets, completed and endorsed for transfer to Buyer;
(viii) the documents referenced in Section 3.3;
(ix) a real property lease for the lease by Seller to Buyer of the Tennessee II Property substantially in the form attached hereto as Exhibit B (the “Tennessee II Property Lease”), duly executed by Seller;
(x) to the extent any Leased Real Property is encumbered by a mortgage or deed of trust, a duly executed non-disturbance agreement in a customary form as reasonably acceptable to Buyer;
(xi) Landlord Agreements, in form reasonably acceptable to Buyer, for each of the Leased Real Properties, executed by each of the applicable landlords;
(xii) (A) an assignment and assumption of lease agreement for each Real Property Lease substantially in the form attached hereto as Exhibit C, duly executed by Seller (or such Affiliate of Seller acting as tenant) and Buyer, and (B) the applicable estoppel and consent agreement to such assignment and assumption, duly executed by the applicable landlord (collectively, the “Lease Assignments”); and
(viixiii) a transition services agreement substantially in the form attached hereto as Exhibit D (the “Transition Services Agreement”), duly executed counterparts to each by Parent;
(xiv) the Cover Letter;
(xv) the consents, authorizations and notices set forth in Section 4.4 of the Transaction Documents Disclosure Schedule, in form and substance reasonably acceptable to which Buyer, that have been received by Seller as of the Seller is a party Closing Date; and
(xvi) evidence, in form and such other documents or instruments as substance reasonably satisfactory to Buyer, that Parent has assigned to Buyer reasonably requests all of its right, title and are reasonably necessary interest in and to consummate the following domain names: w▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and make effective the transactions contemplated by this Agreementw▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
(b) At the Closing, in addition to the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause Base Price payment to be delivered made by Buyer pursuant to Section 2.5(a), Buyer shall deliver to Seller the following, in each case duly executed by Buyer or the applicable Buyer-related party:
(i) a certificate of good standing of Buyer issued by the Secretary or an Assistant Secretary of State of Delaware within ten (or equivalent officer10) days of the Company Closing Date;
(ii) a certificate of the Secretary of Buyer certifying that attached thereto are is a true and complete copies copy of all resolutions adopted by the board of directors of the Company Buyer authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents to which the Company Buyer is a party, party and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect effect;
(iii) the B▇▇▇ of Sale and are all Assignment and the resolutions adopted in connection with Parent B▇▇▇ of Sale, duly executed by Buyer;
(iv) the transactions contemplated hereby and therebyLease Assignments, duly executed by Buyer;
(v) the Tennessee II Property Lease, duly executed by Buyer; and
(iivi) the Transition Services Agreement, duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementBuyer.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will PAS shall deliver, or cause to be delivered, to Buyerthe Company the following:
(i) a stock certificate evidencing certificates representing the Company Acquired Shares, duly endorsed in blank or accompanied by stock transfer powers or other equivalent instruments of transfer duly executed in blankownership and transfer, with which Company Acquired Shares shall be free and clear of all required stock transfer tax stamps affixed theretoLiens;
(ii) written letters all company books and records, including the minute books, stock ledgers and transfer records, the company seal and other materials related to the administration of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired CompaniesPAS Entities;
(iii) a copy of (A) the Organizational Documents of each of the deliverables contemplated PAS Entities, including copy of Articles or Certificate of Incorporation (or equivalent document) and By-laws (or equivalent document) certified by Section 2.5(a)the applicable government official of the jurisdiction of each such PAS Entity’s organization as of a date no more than ten (10) days prior to the Closing Date, and (B) a certificate of good standing or equivalent document from the applicable governmental official of the jurisdiction of each such PAS Entity’s organization and each other jurisdiction in which each such PAS Entity is qualified to do business dated no more than ten (10) days prior to the Closing Date, evidencing the good standing of each such PAS Entity in each such jurisdiction;
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)a certificate, dated as of the Closing Date and signed Date, executed on behalf of PAS by an officer the corporate secretary of the CompanyPAS, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the PAS’ board of directors of the Seller authorizing have authorized the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, documents contemplated hereby and the consummation of the transactions contemplated hereby and thereby;
(v) the Shareholders’ Agreement duly executed by PAS, substantially identical to the form attached hereto as Exhibit B;
(vi) the Transition Services Agreement duly executed by PAS;
(vii) evidence satisfactory to the Company of the transfer to the Company of the Flavor Assets;
(viii) a certificate of the Secretary of PAS certifying that the closing conditions set forth in Section 3.3(b)(i) and that (ii) have been satisfied;
(ix) a resolution of the directors of PAS Barbados authorizing the transfer of the Company Acquired Shares to the Company;
(x) the resignation and a no-claims declaration of each of the existing directors of PAS Barbados;
(xi) the Certificates of Registration for all such resolutions are in full force PAS Owned Trademarks and effect and are all evidence of the resolutions adopted in connection with registration of the transactions contemplated hereby and therebylicences for use of same;
(xii) the Jamaican ▇▇▇▇ of Sale duly executed by PAS; and
(viixiii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other certificates, documents or and instruments (including a Tax Matters Agreement) as Buyer the Company may reasonably requests and are reasonably necessary request related to consummate and make effective the transactions contemplated by this Agreementhereby.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, shall deliver, or cause to be delivered to BuyerPAS the following:
(i) certificates representing the PAS Acquired Shares, duly endorsed in blank or accompanied by stock transfer powers or equivalent instruments of ownership and transfer, which PAS Acquired Shares shall be free and clear of all Liens;
(ii) a copy of (A) the Organizational Documents of the Company, certified by the applicable government official of the British Virgin Islands as of a date no more than ten (10) days prior to the Closing Date, and (B) a certificate of good standing or equivalent document from the Secretary applicable governmental official of the British Virgin Islands dated no more than ten (10) days prior to the Closing Date, evidencing the good standing of the Company;
(iii) a certificate, dated as of the Closing Date, executed on behalf of the Company by the corporate secretary or an Assistant Secretary equivalent officer of the Company, certifying that the Company’s board of directors, managers (or equivalent officer) of the Company certifying that attached thereto are true managing body), and complete copies of all resolutions adopted by the board of directors of the Company authorizing its shareholders or members have authorized the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, documents contemplated hereby and the consummation of the transactions contemplated hereby and thereby;
(iv) the Shareholders’ Agreement duly executed by the Company and Gemcorp, substantially identical to the form attached hereto as Exhibit B;
(v) the Transition Services Agreement duly executed by the Company;
(vi) a certificate of the Secretary of the Company certifying that the closing conditions set forth in Section 3.3(a)(i) and that all such resolutions are in full force and effect and are all (ii) have been satisfied;
(vii) the resolutions adopted in connection with Jamaican ▇▇▇▇ of Sale duly executed by the transactions contemplated hereby and therebyCompany; and
(iiviii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other certificates, documents or and instruments (including a Tax Matters Agreement) as Buyer PAS may reasonably requests and are reasonably necessary request related to consummate and make effective the transactions contemplated by this Agreementhereby.
(c) Buyer will:
(i) at the At Closing, PAS and the Company shall deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, Company the following:
(Ai) at the Closing copies of consents, when received, from (or if a later due date is applicable i) PepsiCo with regard respect to PepsiCo bottling agreements, (ii) PepsiCo, in its capacity as an authorized representative of Seven-Up, with respect to certain Seven-Up bottling agreements, (iii) ▇▇ ▇▇▇▇▇▇ with respect to ▇▇ ▇▇▇▇▇▇ bottling agreements, and (iv) Desnoes & Geddes Limited with respect to the relevant Red Stripe Effluent Treatment Plant Agreement dated December 4, 2008, to the change-in-control or, alternatively, copies of new bottling agreements entered into between the Company Transaction Expense, at such later date)and PepsiCo, the Company and ▇▇ ▇▇▇▇▇▇, and the Company and Seven-Up, which agreements replace and supersede the existing exclusive bottling agreements that PepsiCo, ▇▇ ▇▇▇▇▇▇, and Seven-Up have with the PAS Entities, and those third party consents necessary to consummate the Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees specifically identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing DateSchedule 3.2(c)(i); and
(Bii) at copies, when received, of all governmental approvals, consents or permits, if any, required by applicable Law to consummate the ClosingTransaction including, without limitation, anti-monopoly approval from Trinidad and Tobago, Puerto Rico and Barbados (collectively, with the consents referred to in Section 3.2(c)(i) above, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule“Required Consents”).
Appears in 1 contract
Sources: Subscription and Share Exchange Agreement (Pepsiamericas Inc/Il/)
Closing Deliveries. Subject to the terms set forth herein:
(a) At On or prior to the Closing, the Seller will deliverCompany shall issue, deliver or cause to be delivered, delivered to Buyer:each Purchaser the following (the “Company Deliverables”):
(i) a stock certificate evidencing the Sharesthis Agreement, duly endorsed in blank or accompanied executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe Company;
(ii) written letters facsimile or other electronic copies of resignationone or more book-entry statements from the Transfer Agent, effective free and clear of all restrictive and other legends (except as provided in Section 4.1(b) hereof), evidencing the Shares subscribed for by such Purchaser hereunder, registered in the name of such Purchaser as set forth on the Closing, from each of Book Entry Questionnaire included as Exhibit C-2 hereto (the members of the board of directors of the Acquired Companies“Book-Entry Statements”);
(iii) each facsimile or other electronic copies of one or more Warrants, executed by the Company and registered in the name of such Purchaser as set forth on the Book Entry Questionnaire included as Exhibit C-2 hereto, with the original Warrants delivered within two Trading Days of the deliverables contemplated by Section 2.5(a)Closing;
(iv) certification from a legal opinion of Company Counsel, dated as of the Closing Date, executed by such counsel and addressed to the Purchasers and the Placement Agent, in a form reasonably acceptable to such parties;
(v) the Certificate of Designation shall have been filed with the Secretary of State of Delaware, which Certificate of Designation shall continue to be in full force and effect as of the Closing Date;
(vi) duly executed Irrevocable Transfer Agent Instructions acknowledged in writing by the Transfer Agent instructing the Transfer Agent to deliver, on an expedited basis, the book-entry statements evidencing a number of Shares equal to such Purchaser’s Preferred Share Subscription Amount divided by the B-1 Preferred Share Purchase Price, registered in the name of such Purchaser;
(vii) a certificate of the Secretary of the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h(the “Secretary’s Certificate”), dated as of the Closing Date and signed by an officer of Date, (a) certifying the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board Board of directors Directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is Company or a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective authorized committee thereof approving the transactions contemplated by this Agreement.
Agreement and the other Transaction Documents, the filing of the Certificate of Designation and the issuance of the Securities, (b) At certifying the Closingcurrent versions of the certificate of incorporation, as amended, the Company will, Certificate of Designation and the Seller will cause by-laws of the Company and its Subsidiaries to, deliver, or cause (c) certifying as to be delivered to Buyer:
(i) a certificate the signatures and authority of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and persons signing the Transaction Documents to which the Company is a party, and the consummation related documents on behalf of the transactions contemplated hereby and therebyCompany, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit DE;
(Bviii) the Closing Date Payment by wire transfer of immediately available funds Compliance Certificate referred to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a partyin Section 5.1(i);
(iiix) pay, or cause to be paid, on behalf a certificate evidencing the formation and good standing of the Seller Company issued by the Secretary of State (or comparable office) of the Acquired CompaniesState of Delaware, as of a date within three Business Days of the following:Closing Date;
(Ax) at a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company is qualified to do business as a foreign corporation, as of a date within three Business Days of the Closing Date;
(xi) a certified copy of the certificate of incorporation and Certificate of Designation, each as certified by the Secretary of State (or if comparable office) of the State of Delaware, as of a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after of the Closing Date; and
(Bxii) at the Support Agreement duly executed by the Company and all parties thereto.
(b) On or prior to the Closing, each Purchaser shall deliver or cause to be delivered to the Estimated Company Indebtedness the following (the “Purchaser Deliverables”):
(i) this Agreement, duly executed by such Purchaser;
(ii) its Subscription Amount, in United States dollars and in immediately available funds, in the amount set forth as the “Purchase Price” indicated below such Purchaser’s name on the applicable signature page hereto under the heading “Aggregate Purchase Price (Subscription Amount)” by wire transfer of immediately available funds to the Company;
(iii) a fully completed and duly executed Selling Stockholder Questionnaire in the amounts form attached as Annex A attached hereto; and
(iv) a fully completed and duly executed Accredited Investor Questionnaire, satisfactory to the lenders Company, and other holders of Indebtedness identified on Book Entry Questionnaire in the Company Indebtedness Payoff Scheduleforms attached hereto as Exhibits C-1 and C-2, respectively.
Appears in 1 contract
Closing Deliveries. Subject to At the terms set forth hereinClosing:
(a) At the ClosingPurchasers shall deliver to the Sellers the following:
(i) payment, by wire transfer to one or more bank accounts designated in writing by the Seller will Sellers (such designation to be made by the Sellers at least two (2) business days prior to the Closing Date), of an amount in immediately available funds equal, in the aggregate, to the Estimated Purchase Price less an amount equal to Certified Indebtedness;
(ii) payment to the applicable lenders, by wire transfer to one or more bank accounts designated in writing by the Sellers (such designation to be made by the Sellers at least two (2) business days prior to the Closing Date), of an amount equal to Certified Indebtedness;
(iii) the certificate to be delivered pursuant to Section 6.03;
(iv) a counterpart of the Transition Services Agreement attached as Exhibit B hereto (the “Transition Services Agreement”), duly executed by the applicable Purchasers; and
(v) a certificate of an officer of each Purchaser, given on behalf of the applicable Purchaser and not in his individual capacity, certifying as to (A) the certificate of incorporation and bylaws (or equivalent organizational documents) of the applicable Purchaser, (B) the resolutions of the board of directors (or equivalent governing body) of the applicable Purchaser authorizing this Agreement and the transactions contemplated hereby and (C) the incumbency of the officers executing documents or instruments on behalf of the applicable Purchaser.
(b) the Sellers shall deliver, or cause to be delivered, to Buyerthe Purchasers the following:
(iA) a stock certificate evidencing certificates representing the Cyantek Shares, duly endorsed in blank or accompanied by stock powers or other instruments duly endorsed in blank in proper form for transfer, with appropriate transfer tax stamps, if any, affixed;
(B) a duly executed instrument of transfer of the UPC Singapore Shares executed by the registered holders in favor of KMG Singapore together with the original share certificates of the UPC Singapore Shares and Subsidiary shares;
(C) a working sheet in the form prescribed by the Inland Revenue Authority of Singapore signed by a director or secretary of UPC Singapore computing the net asset value per UPC Singapore Share together with the latest financial statements or management accounts of UPC Singapore;
(D) a duly executed in blank, with all required stock transfer tax stamps affixed theretoform for the transfer of the UPC England Shares executed by the registered holders in favor of KMG England together with the original share certificates of the UPC England Shares and an irrevocable original power of attorney in the form attached as Exhibit C, duly executed by OMG Harjavalta authorizing KMG England to exercise all voting and other rights attaching to the UPC England Shares until the registration of KMG England as the holder of the UPC England Shares;
(ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companiescertificate to be delivered pursuant to Section 6.02;
(iii) each except as the Purchasers may otherwise specify to Sellers in writing prior to the Closing, duly signed resignations, effective immediately after the Closing, of all directors and executive officers set forth in Section 1.03(b)(iii) of the deliverables contemplated by Seller Disclosure Letter and, as applicable, each secretary of the Companies and the Subsidiary set forth in Section 2.5(a1.03(b)(iii) of the Seller Disclosure Letter (or written evidence of other duly authorized corporate action removing such officers or directors), each such resignation to be executed, as a deed where applicable, and to confirm that the person resigning has no claims against the applicable Company or Subsidiary from which he is resigning for compensation, for loss of office or otherwise;
(iv) certification from a written resignation of the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated auditors of UPC England to take effect as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)Closing;
(v) except as the Purchasers may otherwise specify to Sellers in writing prior to the Closing, a good standing certificate (or its equivalent) for each written resignation of the Acquired Companies from the secretary auditors of state or similar Governmental Body UPC Singapore to take effect as of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedClosing;
(vi) a counterpart of the Transition Services Agreement duly executed by OM Group;
(A) a copy of a signed but undated deed of release, in connection with the fixed and floating security document dated November 29, 2011 between Bank of America, NA, Compugraphics International Limited, UPC England and OMG UK Limited from Bank of America, NA that is:
(A) held by the Sellers’ solicitors to the order of Bank of America, NA with authority to date and deliver it once they have received confirmation that the sum of money has been paid to or received by Bank of America, NA;
(B) held by the Bank of America, NA’s solicitors who have provided an undertaking to date and deliver it once they have received confirmation that the agreed sum of money has been paid to or received by Bank of America, NA; and
(B) a letter of non-crystallisation addressed to KMG England from Bank of America, NA confirming that Bank of America, NA will not take any actions or steps to crystallize the floating charge created by the fixed and floating security document dated November 29, 2011 between Bank of America NA, Compugraphics International Limited, UPC England and OMG UK Limited; and
(C) U.C.C. termination statements (and comparable instruments in other jurisdictions) in recordable form and other appropriate releases with respect to all recorded Liens (other than Permitted Liens) of the assets of the Companies and the Subsidiary;
(viii) original stock record books, minute books and statutory registers of the Companies (written up-to-date);
(ix) the company, corporate or common seal (where applicable) of the Companies;
(x) a certificate of an officer of each of the Secretary or an Assistant Secretary Sellers, given on behalf of each Seller and not in his individual capacity, certifying as to (A) the Certificate of Incorporation (or equivalent officerorganizational documents) of such Seller, (B) the Seller certifying that attached thereto are true and complete copies resolutions of all resolutions adopted by the board of directors (or equivalent governing body) of the such Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, and the consummation of the transactions contemplated hereby and thereby(C) the incumbency of the officers executing documents or instruments on behalf of such Seller; and
(xi) a certificate executed by Sellers that satisfies the Purchasers’ obligations under Treasury Regulation Section 1.1445-2.
(c) The Sellers shall have ensured that meetings of the boards of directors of UPC England and UPC Singapore are held at which the directors, subject to and with effect from the Closing:
(i) in respect of UPC England and UPC Singapore, approve the transfer of the UPC England Shares and UPC Singapore Shares to the applicable Purchasers or their nominees and registration of the applicable Purchasers or their nominees as members of UPC England and UPC Singapore, as applicable, in respect of the relevant UPC England Shares or UPC Singapore Shares, as applicable (subject to only the production of properly stamped transfers);
(ii) in respect of UPC England and UPC Singapore, authorize the cancellation of the share certificates in respect of the UPC England Shares and UPC Singapore Shares, as applicable, and that the issuance of new share certificates in respect of the UPC England Shares or UPC Singapore Shares, as applicable, in favor of the applicable Purchasers or their nominees;
(iii) in respect of UPC England, subject only to the stock transfer forms of the UPC England Shares being duly stamped, and in respect of UPC Singapore, subject to the transfer of the UPC Singapore Shares being duly stamped, approve the entry into the register of members of such companies, the name of the applicable Purchasers or their nominees as the holder of the UPC England Shares or UPC Singapore shares, as applicable, and the making of such other entries into other corporate records of such companies as may be necessary;
(iv) except as the Purchasers may otherwise specify to Sellers in writing prior to the Closing, accept resignations of the directors and secretary of UPC England and UPC Singapore set forth in Section 1.03(b)(iii) of the Seller Disclosure Letter, so as to take effect from the Closing;
(v) except as the Purchasers may otherwise specify to Sellers in writing prior to the Closing, in respect of UPC Singapore, revoke all existing authorities to bankers in respect of the operation of its bank accounts and give authority in favor of such resolutions are persons set forth in full force Section 1.03(c)(v) of the Seller Disclosure Letter to operate such accounts;
(vi) except as the Purchasers may otherwise specify to Sellers in writing prior to the Closing, in respect of UPC England, accept evidence of the actions of the directors of UPC England to change UPC England’s signatories to its bank accounts in order to remove the signatories nominated by the Sellers and effect and are all appoint the resolutions adopted signatories set forth in connection with Section 1.03(c)(vi) of the transactions contemplated hereby and therebySeller Disclosure Letter; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
if requested in writing not later than fifteen (b15) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after calendar days before the Closing Date; and
(B) at , change the Closing, the Estimated Company Indebtedness by wire transfer registered office of immediately available funds in the amounts and UPC England to the lenders and other holders of Indebtedness identified on location the Company Indebtedness Payoff SchedulePurchasers provide to the Sellers in that written request.
Appears in 1 contract
Closing Deliveries. Subject Simultaneously with the Closing, the Company ------------------ and the Stockholders shall deliver or cause to be delivered to PQC the terms set forth hereinfollowing:
(a) At employment agreements (the Closing"Employment Agreements") between Flagship and each of the Stockholders and any other physician employed by the Practice, in the Seller will deliver, or cause to be delivered, to Buyer:form attached hereto as Exhibit B; ----------
(ib) an Instrument of Joinder to Stockholders Agreement executed by each of the Stockholders in a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoform reasonably acceptable to PQC;
(iic) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies[Reserved];
(iiid) each certificates of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer duly authorized officers of the Company, certifying that dated the Shares are not “United States real property interest” within Closing Date, setting forth the meaning of Section 897(c)(1) resolutions of the Code Board of Directors and proof reasonably satisfactory to Buyer that Stockholders of the Company shall have provided notice to authorizing the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true execution and complete copies of all resolutions adopted delivery by the board of directors of the Seller authorizing the execution, delivery and performance Company of this Agreement and the Transaction Documents to which the Seller is a party, and the consummation of the transactions contemplated hereby and therebyhereby, and certifying that all such resolutions were duly adopted and have not been rescinded or amended;
(e) [Reserved.]
(f) a report of a reputable lien search firm indicating that there are no liens of record against any of the Company's assets (except for liens which are (i) acceptable to Flagship and PQC in full force their sole discretion or (ii) arising under equipment leases listed on Schedule 5.8(f)); -----------------
(g) the consent of the landlord to the assignment of each Lease, together with any non-disturbance and effect recognition agreements required by PQC from the lessor;
(h) a release from any party with a mortgage or lien on any of the assets of the Company, except for liens which, pursuant to subsection (f) of this Section 5.8, are acceptable to Flagship and are PQC;
(i) the consents of all parties necessary for the resolutions adopted in connection with consummation of the Merger and to consummate the other transactions contemplated hereby and therebyby this Agreement;
(j) a tax lien waiver, if required, from the Comptroller of the Treasury of the State of Maryland; and
(viik) duly executed counterparts to each such other agreements, consents and documents as PQC and Flagship shall reasonably request in connection with (i) their due diligence investigation of the Transaction Documents to which Company, (ii) the Seller is a party affiliation of the Stockholders with Flagship and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective PQC, (iii) the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementEmployment Agreements.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Closing Deliveries. Subject At any time on or prior to the terms set forth herein:
(a) At the ClosingJune 23, 2006, the Seller will deliver, or cause Company may exercise its option to be delivered, require a Second Closing by delivering to Buyer:
(i) KFOC and New Purchaser a stock certificate evidencing written notice setting forth the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;
(ii) written letters of resignation, effective as portion of the Closing, from each of the members of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer Additional Debt Unit that the Company shall have provided notice wishes to sell at the IRS in accordance with Second Closing and the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each date of the Acquired Companies from Second Closing, which shall be not more than ten Trading Days nor less than five Trading Days after the secretary date of state or similar Governmental Body delivery of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) notice. At the Second Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, shall deliver or cause to be delivered to Buyerthe Purchaser or Purchasers of the Additional Debt Unit the following:
(i) a certificate one or more Notes, each registered in the name of the Secretary or an Assistant Secretary applicable Purchaser (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments name as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”such Purchaser may direct in writing) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each amount of the Transaction Documents Additional Debt Unit that such Purchaser shall have elected to which Buyer is a partypurchase pursuant to SECTION 2.1(B);
(ii) payone or more Warrants, registered in the name of the applicable Purchaser (or such other name as such Purchaser may direct in writing), pursuant to which such Purchaser shall have the right to acquire the number of Common Shares as indicated on SCHEDULE A hereto under the heading "Additional Debt Unit - Warrant Shares", reduced proportionately to the extent that such Purchaser is purchasing less than $13,500,000 in principal amount of Notes at such Second Closing;
(iii) the legal opinion of Company U.S. Counsel, in the form of EXHIBIT D-2, executed by such counsel, and the legal opinion of Company Canadian Counsel, in the form of EXHIBIT E-2, executed by such counsel, and delivered to each Purchaser that purchases a portion of the Additional Debt Unit;
(iv) a wire transfer to KFOC in an amount equal to the lesser of the Second Closing Purchase Price paid or payable to the Company for the Additional Debt Unit to be purchased at the Second Closing or the amount outstanding under the KFOC Credit Facility, to be paid in repayment of debt to KFOC pursuant to KFOC Credit Facility; and
(v) any other documents reasonably requested by New Purchaser or KFOC or their counsel in connection with the Second Closing. At the Second Closing, each Purchaser purchasing a portion of the Additional Debt Unit shall deliver or cause to be paid, on behalf delivered to the Company its portion of the Seller or the Acquired CompaniesSecond Closing Purchase Price in United States dollars and in immediately available funds, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds to an account designated in the amounts and to the payees identified on writing by the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedulepurpose.
Appears in 1 contract
Sources: Securities Purchase Agreement (North American Palladium LTD)
Closing Deliveries. Subject to At the terms set forth hereinClosing:
(a1) At The executed Plan of Merger (together with the Closing, articles of merger) satisfying the Seller requirements of Colorado and Minnesota law shall be filed by ATTI and the Company with the Secretaries of State of Colorado and Minnesota.
(2) The Shareholders will deliver, or cause execute and deliver to be delivered, Purchaser 395 shares of Purchaser Common Stock to BuyerPurchaser together with Stock powers exercised in blank.
(3) Purchaser and/or ATTI shall deliver to the Company and the Shareholders the following:
(i1) a stock certificate evidencing the Shares, duly endorsed certificates and other documents and instruments referred to in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoArticle 8 hereof;
(ii2) written letters a true and complete copy of resignationthe Articles of Incorporation of each of Purchaser and ATTI, including all amendments thereto, as certified to by an appropriate governmental official;
(3) a copy of the resolutions adopted by the Board of Directors of each of Purchaser and ATTI authorizing the execution and delivery of this Agreement and the consummation of the Merger and other transactions contemplated hereby, as certified to by the Secretary of Purchaser and ATTI, respectively;
(4) an opinion of counsel for Purchaser and ATTI in substantially the form of Exhibit B --------- attached hereto; and
(5) payment by ATTI of the amounts payable in respect of accrued vacation pay as described in Section 12.3 of this Agreement.
(4) The Company and the Shareholders shall deliver to Purchaser the following:
(1) the certificates and other documents and instruments referred to in Article 7 hereof;
(2) A true and complete copy of the Articles of Incorporation of the Company, including all amendments thereto, as certified to by an appropriate governmental official, and a true and complete copy of the By-Laws of the Company, as certified to by the Secretary of the Company;
(3) A true and complete copy of each material contract, agreement, commitment or plan described on any Schedule hereto;
(4) A copy of the resolutions adopted by the Board of Directors of the Company authorizing the execution and delivery of this Agreement and the Plan of Merger by the Company and the consummation of the Merger and other transactions contemplated hereby, as certified to by the Secretary of the Company;
(5) The resignations of the directors and officers of the Company, effective as of the Closing, from each of the members of the board of directors of the Acquired CompaniesClosing Date;
(iii6) each an opinion of counsel for the deliverables contemplated by Section 2.5(a)Company and Shareholders in substantially the form of Exhibit C attached hereto;
(iv7) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed Noncompetition Agreements executed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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 therebyShareholders; and
(vii) duly 8) Employment letter agreements executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementShareholders.
(b9) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause Addendum to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted Stockholders Agreement executed by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementShareholders.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Closing Deliveries. Subject to On the terms set forth herein:
(a) At the ClosingClosing Date, the Seller Company will deliver, deliver or cause to be delivereddelivered to each Buyer (for purposes of this subsection, deliveries to the Escrow Agent on account of the Buyer shall be deemed to be deliveries to the Buyer:):
(iA) the items required to be delivered to Buyer pursuant to Section 8, duly executed by the Company where so required,
(B) a stock certificate evidencing (“Closing Certificate”) signed by its chief executive officer or chief financial officer (1) representing the Sharestruth and accuracy of all the representations and warranties made by the Company contained in this Agreement, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;
(ii) written letters of resignation, effective as of the Closingapplicable Closing Date, from each as if such representations and warranties were made and given on all such dates, (2) and certifying that an Event of Default has not occurred,
(C) a legal opinion of the members of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)Company's counsel, dated as of the Closing Date Date, in form, scope and signed by an officer of substance reasonably satisfactory to the Buyer and in substantially the same form as Exhibit E attached hereto in relation to the Company, certifying that the Shares are not applicable Preferred Stock, the applicable Warrant and the Transaction Documents (“United States real property interest” within Closing Legal Opinion”),
(D) a duly executed Preferred Stock Certificates with an aggregate Stated Value equal to such Buyer’s Subscription Amount, registered in the meaning name of Section 897(c)(1) such Buyer, minus Preferred Stock Certificates representing the Shareholder Approval Holdback Amount, which shall be delivered to and registered in the name of the Code and proof reasonably satisfactory Escrow Agent,
(E) two duly executed Warrants registered in the name of such Buyer, each to Buyer that the Company shall have provided notice purchase up to a number of shares of Common Stock equal to the IRS one-half of Warrant Amount (as defined in accordance Section 1(b)(iv)), minus the Shareholder Approval Holdback Amount with respect to the provisions Warrant, each with an exercise price equal to the applicable Initial Warrant Exercise Price (as defined in Section 1(b)(iv)) subject to adjustment therein, and two duly executed Warrants registered in the name of Treasury Regulations the Escrow Agent to purchase up to a number of shares equal to the Shareholder Approval Holdback Amount with respect to the Warrant,
(F) Limited Standstill Agreements, duly executed by each of the Designated Insiders (as defined in Section 1.897-2(h)(24(r));
(vG) The Company shall have delivered to such Buyer a true copy of certificate evidencing the formation and good standing certificate of the Company and each of its Subsidiaries in such entity's jurisdiction of formation issued by the Secretary of State (or its equivalentcomparable office) for each of such jurisdiction, as of a date within 10 days of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementClosing Date.
(bH) At The Company shall have delivered to such Buyer a true copy of certificate evidencing the Closing, Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company willconducts business, and as of a date within ten (10) days of the Seller will cause Closing Date.
(I) The Company shall have delivered to such Buyer a certified copy of the Company and its Subsidiaries toCertificate of Incorporation as certified by the Secretary of the State of Delaware as of a date that is ten (10) days prior to the Closing Date. On each Closing Date, deliver, each Buyer shall deliver or cause to be delivered to Buyer:
the Company the following (i) a certificate for purposes of this subsection, deliveries to the Secretary or an Assistant Secretary (or equivalent officer) Escrow Agent on account of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause shall be deemed to be delivered, deliveries to the Seller:Company):
(A) evidence of this Securities Purchase Agreement, the purchase Registration Rights Agreement and the Escrow Agreement, duly executed by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;such Buyer,
(B) the Closing Date Payment such Buyer’s Subscription Amount by wire transfer of immediately available funds to the account designated as specified in writing by the Seller on Annex A; andCompany (subject to offsets for any expenses to which such Buyer is entitled).
(C) duly executed counterparts to each of a Form W-9 (or Form W-8BEN, if the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later datenon-US citizen), duly executed by the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleBuyer.
Appears in 1 contract
Sources: Securities Purchase Agreement (VirtualScopics, Inc.)
Closing Deliveries. Subject to the terms set forth herein:
(a) At On or prior to the Closing, the Seller will deliverCompany shall issue, deliver or cause to be delivered, delivered to Buyer:each Purchaser the following (the “Company Deliverables”):
(i) a stock certificate evidencing the Sharesthis Agreement, duly endorsed in blank or accompanied executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe Company;
(ii) written letters facsimile copies of resignationone or more stock certificates, effective free and clear of all restrictive and other legends (except as provided in Section 4.1(b) hereof), evidencing the Shares subscribed for by such Purchaser hereunder, registered in the name of such Purchaser, with the original Stock Certificates delivered within three Trading Days of Closing, from each of the members of the board of directors of the Acquired Companies;
(iii) each facsimile copies of one or more Warrants, executed by the Company and registered in the name of such Purchaser, pursuant to which such Purchaser shall have the right to acquire such number of Warrant Shares equal to 50% of the deliverables contemplated number of Shares issuable to such Purchaser pursuant to Section 2.2(a)(ii), rounded up to the nearest whole share (provided, however, that in the event any Purchasers are Affiliates of each other, all Shares purchased by Section 2.5(asuch Purchasers shall be aggregated together for the purpose of determining the aggregate number of Warrant Shares subject to all Warrants purchased by such Purchasers), on the terms set forth therein, with the original Warrants delivered within three Trading Days of Closing;
(iv) certification from the a legal opinion of Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)Counsel, dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof in form reasonably satisfactory to Buyer that the Company shall have provided notice acceptable to the IRS in accordance with Purchasers, executed by such counsel and addressed to the provisions of Treasury Regulations Section 1.897-2(h)(2)Purchasers and the Placement Agent;
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from Registration Rights Agreement, duly executed by the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedCompany;
(vi) duly executed Irrevocable Transfer Agent Instructions acknowledged in writing by the Transfer Agent instructing the Transfer Agent to deliver, on an expedited basis, a certificate evidencing a number of Shares equal to such Purchaser’s Subscription Amount divided by the Purchase Price, registered in the name of such Purchaser;
(vii) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller Company (the “Secretary’s Certificate”), in form reasonably acceptable to the Purchasers, dated as of the Closing Date, (a) certifying that attached thereto are true and complete copies of all the resolutions adopted by the board Board of directors Directors of the Seller authorizing Company or a duly authorized committee thereof approving the execution, delivery and performance of transactions contemplated by this Agreement and the other Transaction Documents to which and the Seller is a partyissuance of the Securities, (b) certifying the current versions of the certificate of incorporation, as amended, and the consummation by-laws of the transactions contemplated hereby Company and thereby(c) certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company;
(viii) the Compliance Certificate referred to in Section 5.1(i);
(ix) a Lock-Up Agreement, substantially in the form of Exhibit D hereto (the “Lock-Up Agreement”) executed by each person listed on Exhibit E hereto, and that all each such resolutions are Lock-Up Agreement shall be in full force and effect and are all on the resolutions adopted in connection with the transactions contemplated hereby and thereby; andClosing Date;
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(ix) a certificate of evidencing the Secretary or an Assistant Secretary (or equivalent officer) formation and good standing of the Company certifying that attached thereto are true and complete copies of all resolutions adopted issued by the board Secretary of directors State of the Company authorizing the execution, delivery and performance State of this Agreement and the Transaction Documents to which the Company is Delaware as of a party, and the consummation date within five business days 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit DClosing Date;
(Bxi) a certificate evidencing the Closing Date Payment by wire transfer of immediately available funds to the account designated Company’s qualification as a foreign corporation and good standing issued by the Seller on Annex A; and
(C) duly executed counterparts to each Secretary of State of the Transaction Documents to which Buyer is State of California as of a party;
(ii) pay, or cause to be paid, on behalf date within five business days of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(Bxii) at a certified copy of the certificate of incorporation of the Company, as certified by the Secretary of State of the State of Delaware, as of a date within 10 days of the Closing Date.
(xiii) a comfort letter from the Company’s auditors addressed to the Placement Agent, in form and substance reasonably satisfactory to the Placement Agent in all material respects.
(b) On or prior to the Closing, each Purchaser shall deliver or cause to be delivered to the Estimated Company Indebtedness the following, with respect to such Purchaser (the “Purchaser Deliverables”):
(i) this Agreement, duly executed by such Purchaser;
(ii) its Subscription Amount, in United States dollars and in immediately available funds, in the amount set forth as the “Purchase Price” indicated below such Purchaser’s name on the applicable signature page hereto under the heading “Aggregate Purchase Price (Subscription Amount)” by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified Escrow Account, as set forth on Exhibit C attached hereto;
(iii) the Company Indebtedness Payoff Schedule.Registration Rights Agreement, duly executed by such Purchaser; and
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will deliver, each of Sellers (as applicable) shall deliver or cause to be delivered, delivered to BuyerPurchaser:
(i) a stock certificate evidencing the SharesB▇▇▇ of Sale, duly endorsed Assignment and Assumption Agreement, the Deeds with all Conveyance Tax stamps affixed, each Assignment of Lease, the Trademark Assignment and such other instruments, in blank form and substance reasonably satisfactory to Purchaser, as may be reasonably requested by Purchaser to effect the transfer of the Transferred Assets to Purchaser or accompanied by stock powers or other instruments of evidence such transfer on the public records, in each case duly executed by the relevant one of Sellers (and Mayflower Plc, in blank, with all required stock transfer tax stamps affixed theretothe case of the Trademark Assignment);
(ii) written letters the Employee-Benefits Assignment and Assumption Agreement, executed by the relevant one of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired CompaniesSellers;
(iii) each of the deliverables contemplated by Section 2.5(a)Transition Services Agreement;
(iv) certification from executed counterparts of each Ancillary Agreement other than the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3Ancillary Agreements delivered pursuant to Section 2.09(a)(i) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2through (iii);
(v) a receipt for the Estimated Cash Purchase Price less the amount transferred to the Escrow Agent pursuant to Section 2.09(b)(i);
(vi) a true and complete copy, certified by the Secretary or an Assistant Secretary of the relevant one of Sellers, of the constituent documents of each Seller and the resolutions duly and validly adopted by the Board of Directors or Board of Managers of such relevant one of Sellers evidencing its authorization of the execution and delivery of this Agreement and each applicable Ancillary Agreement and the consummation of the transactions contemplated hereby and thereby;
(vii) a certificate of the Secretary or an Assistant Secretary of the relevant one of Sellers certifying the names and signatures of the officers of the relevant one of Sellers authorized to sign this Agreement and each applicable Ancillary Agreement and the other documents to be delivered hereunder and thereunder;
(viii) a certificate of a duly authorized officer of the relevant one of Sellers certifying as to the matters set forth in Section 8.02(a);
(ix) written confirmation that MVS and MVS-Michigan at or prior to the Closing have changed their respective names so that they do not contain the word “Mayflower” or the phrase “MVS”;
(x) a certificate as described in Section 8.02(d) hereunder;
(xi) customary title affidavits and certificates relating to the Transferred Real Property; and
(xii) a favorable opinion of Seller’s special counsel as to due organization and good standing certificate of and due authorization by Sellers and the enforceability (subject to customary exceptions) against Sellers of this Agreement and the relevant Ancillary Agreements in form and substance satisfactory to Purchaser;
(xiii) mortgage releases or its equivalentother lien satisfactions in connection with any non-Governmental Debt being repaid on the Closing Date and customary pay-off letters with respect to all Indebtedness being repaid on the Closing Date, including all Indebtedness for Borrowed Money, provided that once Sellers deliver the Deeds to Purchaser and the Deeds are accepted by Purchaser, Purchaser shall be responsible for obtaining and recording any mortgage releases or other lien satisfactions in connection with any Governmental Debt being repaid on the Closing Date and Sellers shall have no liability to Purchaser by reason of any such mortgages or liens remaining of record against any Owned Property after Closing; and
(xiv) for each such other documents and instruments as shall be reasonably requested by Purchaser to effect the intent of this Agreement and to consummate the transactions contemplated hereby.
(b) At the Closing, Purchaser shall deliver or cause to be delivered to Seller (except as set forth in (i) below):
(i) US $5,000,000 of the Acquired Companies from Estimated Cash Purchase Price by bank transfer in immediately available funds to the secretary of state or similar Governmental Body Escrow Agent under the Escrow Agreement;
(ii) US $7,500,000 of the jurisdiction under Estimated Cash Purchase Price by bank transfer in immediately available funds to the applicable Laws Retention Account as provided in which each Section 2.10(b) hereof;
(iii) the balance of the Acquired Companies Estimated Cash Purchase Price by wire transfer in immediately available funds to the designated recipients thereof as provided in Section 2.10(a) hereof;
(iv) executed counterparts of each Ancillary Agreement to which Purchaser is organizeda party;
(v) a true and complete copy, certified by the Secretary or an Assistant Secretary of Purchaser, of the constituent documents of Purchaser and the resolutions duly and validly adopted by the Board of Directors of Purchaser evidencing its authorization of the execution and delivery of this Agreement and the Ancillary Agreements to which it is a party and the consummation of the transactions contemplated hereby and thereby;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Purchaser certifying the names and signatures of the Seller officers of Purchaser authorized to sign this Agreement and the Ancillary Agreements and the other documents to be delivered hereunder and thereunder;
(vii) a certificate of a duly authorized officer of Purchaser certifying that attached thereto are true as to the matters set forth in Section 8.01(a);
(viii) an opinion of K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, Purchaser’s outside counsel, only as to due organization and complete copies good standing of all resolutions adopted and due authorization by Purchaser, and the board of directors of enforceability (subject to the Seller authorizing the execution, delivery and performance customary exceptions) against Purchaser of this Agreement and the Transaction Documents relevant Ancillary Agreements, in form and substance satisfactory to which the Seller is a party, 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 therebySeller; and
(viiix) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or and instruments as Buyer shall be reasonably requests and are reasonably necessary requested by Seller to consummate and make effective effect the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance intent of this Agreement and the Transaction Documents to which the Company is a party, and the consummation of consummate 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreementhereby.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Commercial Vehicle Group, Inc.)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will deliver, Company shall deliver or cause to be delivered, delivered to Buyereach Investor that has satisfied its obligations under this Section 2.2(a) and to the Placement Agent the following:
(i) a stock certificate evidencing executed by the SharesCompany’s chief executive officer and chief financial officer, duly endorsed confirming the continued truth and correctness in blank or accompanied all material respects (except as to those representations and warranties qualified by stock powers or other instruments materiality, as to which the confirmation shall be as to their continued truth and correctness) as of transfer duly executed the Closing Date of the Company’s representations and warranties made in blank, with all required stock transfer tax stamps affixed theretoArticle III hereof;
(ii) written letters a certificate of resignationthe secretary of the Company, effective attaching a recent copy of the certificate of incorporation certified by the Secretary of State of the State of Delaware and a good standing certificate as of a date not more than two days prior to the Closing, copies of the by-laws of the Company and resolutions of the board of directors, which the secretary of the Company has certified as true and correct copies in full force and effect as of the Closing, from each of the members of the board of directors of the Acquired Companies;
(iii) each a copy of a Current Report on Form 8-K, describing the offering of the deliverables contemplated by Section 2.5(a)Securities, which will be substantially in the form to be filed within four Business Days after the Signing, and a copy of any press release of the Company announcing the sale of the Securities;
(iv) certification from one or more stock certificates (or copies thereof provided by the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(hTransfer Agent), dated free and clear of all restrictive and other legends (except as expressly provided in Section 4.1(b) hereof), (a) evidencing such number of Common Shares set forth opposite such Investor’s name on Exhibit A hereto under the Closing Date heading “Common Shares,” registered in the name of such Investor and signed by an officer (b) evidencing such number of the Company, certifying that the Common Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice be issued hereunder to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)Placement Agent;
(v) (a) a good standing certificate Warrant, issued in the name of such Investor, pursuant to which such Investor shall have the right to acquire such number of Warrant Shares set forth opposite such Investor’s name on Exhibit A hereto under the heading “Warrant Shares” and (or its equivalentb) for each a Warrant issued in the name of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedPlacement Agent as provided hereunder;
(vi) a certificate copy of this Agreement, together with the schedules thereto, executed by an authorized officer of the Secretary or Company;
(vii) a legal opinion of Company Counsel, in the form of Exhibit C, executed by such counsel and delivered to the Investors and the Placement Agent;
(viii) duly executed Transfer Agent Instructions;
(ix) approval by each applicable Trading Market of an Assistant Secretary (or equivalent officer) additional shares listing application covering all of the Seller certifying that attached thereto are true and complete copies Registrable Securities (and, if applicable, evidence of all resolutions adopted conditional listing approval) or, a certificate executed by the board of directors of Company’s chief financial officer and internal legal counsel, confirming that the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is Company duly submitted a party, and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are complete additional shares listing application covering all the resolutions adopted Registrable Shares no later than the first Trading Day following the Signing Date and, based in connection part on communication with the transactions contemplated hereby and therebyTrading Market, has no reason to believe the Registrable Shares will not be so approved for trading on or before the Effective Date; and
(viix) duly executed counterparts any consents or approvals of any Person listed on Schedule 3.1(aa) or any other third-party required to each effect the terms and conditions of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, each Investor shall deliver or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (price set forth opposite such Investor’s name on Exhibit A hereto under the heading “Indemnification Insurance Policy”) Purchase Price” in the form attached hereto as Exhibit D;
(B) the Closing Date Payment United States dollars and in immediately available funds, by wire transfer of immediately available funds to the an account designated in writing to such Investor by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at for such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedulepurpose.
Appears in 1 contract
Sources: Securities Purchase and Registration Rights Agreement (Majesco Entertainment Co)
Closing Deliveries. Subject to At the terms set forth hereinClosing:
(a) At the Closing, the Seller will deliver, Target and/or Holders (as applicable) shall deliver or cause to be delivered, delivered to BuyerAcquiror the following:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied Certificates and the Letters of Transmittal (as contemplated by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoSection 2.08);
(ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true Target, in form and complete copies of all resolutions adopted by the substance reasonably satisfactory to Acquiror and its counsel, regarding Target's Charter Documents, good standing, board of directors and stockholder resolutions relating to the Transactions and the incumbency of Target's officers;
(iii) letters of resignation in the name of and executed by each (A) member of Target's Board of Directors resigning his/her position as a director of such company effective as of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a partyEffective Time, and the consummation (B) officer of Target resigning his/her position as an officer of such company effective as of the transactions contemplated hereby and therebyEffective Time, and that all such resolutions are in full force and effect and are all each case, except as otherwise agreed to by the resolutions adopted in connection with the transactions contemplated hereby and thereby; andParties;
(viiiv) duly executed counterparts to each of the Transaction Documents to which the Seller Target or any Holder is a party party;
(v) bank account signature cards for each account of Target;
(vi) the Required Consents;
(vii) executed counterparts of an Employment Agreement, in the form of Exhibit D, entered into as of the Closing Date by Target and such other documents or instruments Lewis (the "Employment Agreement");
(viii) executed c▇▇▇▇▇rparts of a Noncompetition Agreement, in the form of Exhibit E, entered into as Buyer reasonably requests of the Closing Date by Acquiror and are reasonably necessary to consummate Lewis (the "Lewis Noncompetition Agreement");
(ix) the ▇▇▇▇rdinati▇▇ ▇▇reement; and make effective (x) the transactions contemplated by this Security Agreement.
(b) At Acquiror shall deliver the Closing, following to the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to BuyerHolders' Representative:
(i) the Aggregate Merger Consideration (as contemplated by Section 2.08);
(ii) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Acquiror, in form and substance reasonably satisfactory to the Company certifying that attached thereto are true Holders and complete copies of all resolutions adopted by the their counsel, regarding Acquiror's Charter Documents, good standing, board of directors resolutions relating to the Transactions and the incumbency of Acquiror's officers;
(iii) a certificate of the Company authorizing general partner of Acquisition Sub, in form and substance reasonably satisfactory to the executionHolders and their counsel, delivery and performance of this Agreement regarding Acquisition Sub's Charter Documents, good standing and the Transaction Documents to which the Company is a party, and the consummation consent of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all general partner relating to the resolutions adopted in connection with the transactions contemplated hereby and thereby; andTransactions;
(iiiv) duly executed counterparts to each of the Transaction Documents (including the Employment Agreement) to which the Company Acquiror or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer Acquisition Sub is a party;
(iiv) pay, or cause the Subordination Agreement executed by Acquiror and all of Acquiror's Affiliates required to be paid, on behalf of the Seller or the Acquired Companies, the following:execute such agreement;
(Avi) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing DateSecurity Agreement; and
(Bvii) at the ClosingDeed of Trust.
(c) Acquiror shall file with the Secretary of State of Texas a duly executed Certificate of Merger, as required by the Estimated Company Indebtedness TBCA and the TRLPA, and the Parties shall take all such other and further actions as may be required by wire transfer of immediately available funds in law to make the amounts Merger effective upon the terms and subject to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Scheduleconditions hereof.
Appears in 1 contract
Sources: Plan of Reorganization and Agreement of Merger (Maverick Tube Corporation)
Closing Deliveries. Subject to At the terms set forth hereinClosing Seller shall deliver:
(a) At the Closingsuch bills of sale, the Seller will deliver, or cause to be delivered, to Buyer:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or documents of transfer and other instruments as are necessary to transfer ownership of transfer duly executed in blankthe Transferred Assets to Purchaser, together with all required stock transfer tax stamps affixed theretosuch keys and information as are necessary to enter upon the land and utilize the equipment and buildings;
(iib) written letters documents of resignationtitle and certificates of registration for all trucks, effective as of trailers and registered motor vehicles included in the Closing, from each of the members of the board of directors of the Acquired CompaniesTransferred Assets;
(iiic) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors or governing body of the Seller Seller, authorizing the execution, execution and delivery and performance of this Purchase Agreement and the Transaction Documents sale of the Transferred Assets in accordance with the terms and provisions hereof;
(d) releases for all secured indebtedness, Claims or Encumbrances upon the Transferred Assets;
(e) an appraisal report evidencing that the value of the Transferred Assets is equal to which the Purchase Price, together with such opinion of local counsel as may be necessary to obtain any certificates or approvals required of the PRC, provincial or local governments;
(f) a Land Management Agreement wherein the Seller is agrees that if a party, and the consummation necessary consent of the transactions contemplated hereby local government is not obtained it will operate the Transferred Assets at the direction of and thereby, and for the benefit of Purchaser so that all such resolutions are in full force and effect and are all Purchaser will receive any profit or reimburse any loss derived from the resolutions adopted in connection with operation of the transactions contemplated hereby and thereby; andTransferred Assets subsequent to the Closing Date;
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(ig) a certificate of the Secretary Seller confirming that there are no liens or an Assistant Secretary (Encumbrances on the Transferred Assets other than those for which the Seller is delivering releases or equivalent officer) which are agreed to by the Company and that the representations of the Company certifying that attached thereto Seller contained in this Agreement are true and complete copies correct as of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(Bh) at such other documents as the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff SchedulePurchaser or its counsel may reasonably request.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth hereinConcurrently herewith:
(a) At the Closing, Borrower shall cause each Guarantor of Payment to consent and agree to and acknowledge the Seller will deliver, or cause to be delivered, to Buyer:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments terms of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothis Amendment;
(iib) written letters the Borrower and each Guarantor of resignationPayment shall execute and deliver to the Administrative Agent a Pledge Agreement, effective as in form and substance satisfactory to the Administrative Agent, pursuant to which the Borrower and each such Guarantor of Payment shall pledge all of the Closing, from stock or other equity interest of each Subsidiary (other than a Foreign Subsidiary) of the members Borrower or such Guarantor of Payment, together with the stock certificates pledged thereunder and accompanying stock transfer powers;
(c) the Borrower shall deliver to the Administrative Agent such examinations and reports, in form and detail satisfactory to the Administrative Agent, with respect to the Mortgaged Property, issued by a title company satisfactory to the Administrative Agent, that shows each Mortgage to be a valid first priority Lien on such Mortgaged Property, free and clear of all defects and encumbrances except such matters of record as permitted pursuant to the Credit Agreement;
(d) the Borrower shall deliver to the Administrative Agent evidence of insurance on ACORD 27 form, and otherwise satisfactory to the Administrative Agen▇, ▇▇ adequate personal property and liability insurance of each Credit Party, with the Administrative Agent, on behalf of the Lenders, listed as mortgagee, loss payee and additional insured;
(e) the Borrower shall provide to the Administrative Agent and the Lenders an officer's certificate certifying the names of the officers of the Borrower and each Guarantor of Payment authorized to sign this Amendment and the Security Documents that are being executed on the date hereof to which the Borrower or such Guarantor of Payment is a party, together with the true signatures of such officers and certified copies of the resolutions of the board of directors or executive committee of the Acquired Companies;
(iii) each Borrower or such Guarantor of Payment, evidencing approval of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) execution and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement Amendment and the Transaction Security Documents to which the Seller is a party, and the consummation Borrower or such Guarantor 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(iif) paythe Borrower shall provide to the Administrative Agent and the Lenders such opinions of counsel for the Borrower and each Guarantor of Payment, in form and substance satisfactory to the Administrative Agent and the Lenders, as the Administrative Agent and the Lenders may deem necessary or appropriate;
(g) pursuant to Section 1.5 of this Amendment, the Borrower shall cause each Eligible Subsidiary (other than S.K. Wellman S.p.A.) to be paiddeliver to the Administrative Agent an Elect▇▇▇ ▇▇ ▇▇▇▇▇nate;
(h) the Borrower shall pay to the Administrative Agent, on behalf for the pro rata benefit of the Seller or Lenders, an amendment fee in the Acquired Companies, the following:amount of Fifty Thousand Dollars ($50,000);
(Ai) at with respect to each parcel of the Closing (or if a later due date is applicable with regard Mortgaged Property, evidence to the relevant Company Transaction Expense, at such later date), satisfaction of the Company Transaction Expenses by wire transfer Administrative Agent that no portion of immediately available funds any Mortgaged Real Property is located in the amounts and to the payees identified a Special Flood Hazard Area or is otherwise classified as Class A or Class BX on the Company Transaction Expense Schedule. Buyer Flood Maps maintained by the Federal Emergency Management Agency;
(j) the Borrower shall provide evidence pay all legal fees and expenses of payment on the Closing Date for Administrative Agent in connection with this Amendment and the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Datedocuments executed in connection herewith; and
(Bk) at the Closing, Borrower shall provide such other items and shall satisfy such other conditions as may be reasonably required by the Estimated Company Indebtedness by wire transfer of immediately available funds in Administrative Agent and the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleLenders.
Appears in 1 contract
Sources: Credit Agreement (Hawk Corp)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will deliver, Company shall deliver or cause to be delivered, delivered to Buyerthe Escrow Agent on behalf of each Purchaser the following:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer this Agreement duly executed in blank, with all required stock transfer tax stamps affixed thereto;by the Company.
(ii) written letters a certificate evidencing a number of resignationShares equal to the subscription amount indicated below such Purchaser's name on the signature page of this Agreement divided by the Per Share Purchase Price, effective as registered in the name of the Closing, from each of the members of the board of directors of the Acquired Companiessuch Purchaser;
(iii) each a legal opinion from counsel reasonably acceptable to the Purchasers, in the form of Exhibit C hereto, addressed to the deliverables contemplated by Section 2.5(a)Purchasers;
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed Registration Rights Agreement duly executed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from Escrow Agreement duly executed by the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;Company; and
(vi) a certificate Parent Warrant, registered in the name of such Purchaser, pursuant to which such Purchaser shall have the right to acquire up to the number of shares of Common Stock equal to 30% of the Secretary or an Assistant Secretary (or equivalent officer) of Shares to be issued to such Purchaser at the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; andClosing;
(vii) duly executed counterparts a Subsidiary Warrant, registered in the name of such Purchaser, pursuant to each which such Purchaser shall have the right to acquire up to a number of shares of common stock of iNetWorks Corporation equal to (in number and not value) 10% of the Transaction Documents number of Shares to which be issued to such Purchaser at the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementClosing.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, each Purchaser shall deliver or cause to be delivered to Buyerthe Escrow Agent the following:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and by such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a partyPurchaser;
(ii) paythe subscription amount indicated below such Purchaser's address for notice on the signature page of this Agreement, or cause to be paidin United States dollars and in immediately available funds, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on account of the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on Escrow Agent;
(iii) the Closing Date for the payments which have to be made on Escrow Agreement duly executed by such date and within two (2) Business Days after payment is made for payments to be made after the Closing DatePurchaser; and
(Biv) at the Closing, the Estimated Company Indebtedness Registration Rights Agreement duly executed by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedulesuch Purchaser.
Appears in 1 contract
Sources: Securities Purchase Agreement (Irvine Sensors Corp/De/)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will Sellers’ Representative shall deliver, or cause to be delivered, to Buyer, the following:
(i) a stock certificate evidencing evidence, in form and substance satisfactory to Buyer, that the Shares, duly endorsed Phantom Equity Plan has been amended in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, accordance with all required stock transfer tax stamps affixed theretoSection 2.02(d) effective prior to the Closing;
(ii) written letters joinder and release agreements, substantially in the forms attached hereto as Exhibit B, duly executed by each holder of resignation, effective as of Phantom Performance Units under the Closing, from each of Phantom Equity Plan (the members of the board of directors of the Acquired Companies“Joinder and Release Agreements”);
(iii) each all notices, consents, authorizations, orders and approvals set forth in Section 3.05 of the deliverables contemplated by Section 2.5(a)Disclosure Schedules, in each case, in form and substance reasonably satisfactory to Buyer;
(iv) certification from an Assignment, substantially in the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3form attached hereto as Exhibit C and duly executed by each Seller Member;
(v) and 1.897-2(h), dated as a certificate of the Closing Date and signed by an officer of the Company, substantially in the form attached hereto as Exhibit D, certifying (x) that attached thereto are true and complete copies of the Shares are not “United States real property interest” within resolutions adopted by the meaning members and board of Section 897(c)(1managers (or equivalent) of the Code Company authorizing the execution, delivery and proof reasonably satisfactory to Buyer that performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, including amendment of the Phantom Equity Plan by the board of managers of the Company shall have provided notice to authorize the IRS treatment of Phantom Performance Units in accordance with Section 2.02(d) and termination of all rights of the provisions Seller Members under the Operating Agreement (subject to Section 5.11), 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, and (y) the names and signatures of Treasury Regulations Section 1.897-2(h)(2)the officers of the Company authorized to sign this Agreement, the Ancillary Documents and the other documents to be delivered hereunder and thereunder by the Company;
(vvi) a certificate of each Seller Member that is not a natural person, in a form reasonably acceptable to Buyer, certifying (x) that attached thereto are true and complete copies of the resolutions adopted by the members and managers (or equivalent) of such Seller Member, as applicable, authorizing its execution, delivery and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, including assignment of the Purchased Interests to Buyer, 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, and (y) the names and signatures of the officers of such Seller Member authorized to sign this Agreement, the Ancillary Documents and the other documents to be delivered hereunder and thereunder by such Seller Member;
(vii) Buyer shall have received resignations of the manager and any members of the board of managers (or equivalent body), and any officers requested by Buyer, of the Company and its Subsidiaries;
(viii) a good standing certificate (or its equivalent) for each of the Acquired Companies Company from the secretary of state or similar Governmental Body Authority of the jurisdiction under the applicable Laws in which each of the Acquired Companies Company is organized;
(viix) a properly executed IRS Form W-9 from each Seller Member;
(x) [intentionally omitted];
(xi) An employment agreement, in form and substance reasonably satisfactory to Buyer, duly executed by the Key Employee, to take effect upon the Closing (the “Employment Agreement”);
(xii) the Escrow Agreement duly executed by the Sellers’ Representative and Escrow Agent;
(xiii) confirmatory intellectual property assignment agreements in favor of the Company duly executed by all current employees of the Company, in form and substance reasonably satisfactory to the Buyer;
(xiv) confirmatory intellectual property assignment agreements in favor of the Company duly executed by the contractors of the Company set forth on Schedule C, in form and substance reasonably satisfactory to the Buyer;
(xv) an amendment to the Mind Tank Operating Agreement, in the form attached hereto as Exhibit E (“Amendment to Mind Tank Operating Agreement”); and
(xvi) an assignment of certain Intellectual Property from Mind Tank to the Company, in the form attached hereto as Exhibit F (the “Mind Tank IP Assignment”).
(b) At the Closing, the Buyer shall:
(i) deliver to Sellers’ Representative a certificate of the Secretary or an Assistant Secretary (or equivalent officerofficer or manager) of the Seller Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors (or equivalent body) of the Seller Buyer authorizing the execution, delivery and performance of this Agreement and the Transaction Ancillary Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) paymake the payments required by, or cause to be paidand in accordance with, on behalf of the Seller or the Acquired Companies, the following:Section 2.03.
(Aiii) at the Closing (or if a later due date is applicable with regard deliver to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts Sellers’ Representative and Escrow Agent an executed counterpart signature page to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleEscrow Agreement.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will deliver, shall deliver or cause to be delivered, delivered to BuyerPurchaser all of the following:
(i) a stock certificate evidencing issued as of a recent date as to the Shares, duly endorsed good standing of TNI in blank or accompanied by stock powers or other instruments the State of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoMinnesota;
(ii) written letters of resignation, effective as executed assignment of the ClosingTNI Shares, from each of the members of the board of directors of the Acquired Companiesin form and substance reasonably satisfactory to Purchaser;
(iii) each executed stock transfer form for the TN Europe Share, in form and substance reasonably satisfactory to Purchaser, together with either the original share certificate or an indemnity for lost share certificate (in a form reasonably acceptable to Purchaser) in respect of the deliverables contemplated by Section 2.5(a)TN Europe Share;
(iv) certification from resolutions of the directors of each of TN Europe and each UK Company Subsidiary, in accordance with Treasury Regulations Sections 1.1445-2(c)(3form and substance reasonably satisfactory to Purchaser, to approve Closing matters including: (a) in the case of TN Europe only, registering Purchaser as holder of the TN Europe Share, subject only to due stamping of the transfer, (b) in the case of TN Europe only, authorizing the execution and 1.897-2(h)delivery to Purchaser of share certificates in respect of the TN Europe Share; (c) confirming the resignations and appointments of directors and officers;
(v) a certificate of the secretary of Seller, dated as of the Closing Date Date, in form and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof substance reasonably satisfactory to Buyer that the Company shall have provided notice Purchaser, certifying to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions duly adopted by the board of directors of the Seller Board authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, and the consummation of the transactions contemplated hereby Contemplated Transactions, which resolutions shall have been certified as true, correct and thereby, and that all such resolutions are in full force and effect without rescission, revocation or amendment as of the Closing Date;
(vi) the Transition Services Agreement, duly executed by Seller;
(vii) resignations, in form and substance reasonably satisfactory to Purchaser, duly executed by the directors and officers of the Acquired Companies listed on Schedule 2.7(a)(vii);
(viii) evidence of the consents, waivers or approvals set forth on Schedule 2.7(a)(viii);
(ix) the register of members of each of TN Europe and the UK Company Subsidiaries together with all of the other statutory registers and statutory books of each of TN Europe and the UK Company Subsidiaries, in each case, duly written up to date as at Closing;
(x) the share certificates for all issued shares in each of the UK Company Subsidiaries (or, if such share certificates are lost, indemnities for lost share certificate in form and substance reasonably satisfactory to Purchaser);
(xi) a power of attorney in a form and substance reasonably satisfactory to Purchaser and duly executed by Seller appointing Purchaser as Seller’s duly authorized attorney to exercise all voting and other rights attaching to the resolutions adopted TN Europe Share pending stamping of the transfer of the TN Europe Share and the registration of Purchaser of the holder of the TN Europe Share;
(xii) a letter from Seller in connection with form and substance reasonably satisfactory to Purchaser confirming that on Closing it will cease to be a relevant registrable entity (within the transactions contemplated hereby meaning of section 790C of the UK Companies Act 2006) in relation to TN Europe;
(xiii) deeds of release duly executed by each holder of any Lien (other than HSBC Bank plc in respect of the debenture granted by Net2Edge in favor of HSBC Bank plc) releasing and therebyconfirming that all Liens granted by or affecting the share capital of or the assets or undertaking of any Company or Company Subsidiary (including the UK Company Subsidiaries) have been released and discharged in full;
(xiv) a Deed of Waiver, in form and substance reasonably satisfactory to Purchaser, to cause a waiver of the debt of £2,334,258 owed by TN Europe to Seller; and
(viixv) duly executed counterparts evidence reasonably satisfactory to each Purchaser (A) of the Transaction Documents termination and release of all instruments providing for or related to which the Seller is W▇▇▇▇ Debt, including any related guaranty and promissory notes, in each case with respect to the Acquired Companies, and (B) that all Liens on the Purchased Securities shall have been released at or prior to the Closing, including documentation in form and substance reasonably satisfactory to Purchaser executed by each Person holding a party security interest or other Lien in any Purchased Security as of the Closing Date terminating any and all such security interests and other documents Liens and authorizing Purchaser to file or record on behalf of such Person a UCC-3 termination statement or other instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreementof release or discharge relating thereto.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, Purchaser shall deliver or cause to be delivered to BuyerSeller all of the following:
(i) a certificate issued as of a recent date as to the good standing of Purchaser in the State of Delaware;
(ii) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) secretary of Purchaser, dated as of the Company Closing Date, in form and substance reasonably satisfactory to Seller, certifying that attached thereto are true and complete copies of all to the resolutions duly adopted by the Purchaser’s board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, and the consummation of the transactions contemplated hereby Contemplated Transactions, which resolutions shall have been certified as true, correct and thereby, and that all such resolutions are in full force and effect and are without rescission, revocation or amendment as of the Closing Date;
(iii) the Transition Services Agreement, duly executed by Purchaser;
(iv) subject to Section 7.11, evidence that the landlord under the UK Lease has released Seller from all obligations as guarantor under the resolutions adopted in connection with UK Lease effective as of the transactions contemplated hereby and therebyClosing; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(Av) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller consents, waivers or approvals set forth on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later dateSchedule 2.7(b)(v), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Sources: Securities Purchase Agreement (Communications Systems Inc)
Closing Deliveries. Subject to On the terms set forth hereinClosing Date:
(a) At the Closing, the Seller will deliver, Purchaser shall deliver or execute or cause to be deliveredexecuted and delivered to Sellers (as applicable) on or before Closing:
i. The Transaction Payments as set out in Section 1.2.
ii. Written approvals, consents and acceptances of the transactions contemplated hereby from (A) SAWS (which the parties hereto acknowledge, when and if delivered by SAWS, shall be pursuant to BuyerArticle 24 and Section1.2(BB) of the WTPA), (B) the Lenders, and (C) Blue Water Vista Ridge, LLC (“Blue Water”), in the form agreed to between Seller and Purchaser, in their reasonable discretion.
iii. A copy of the fully executed substituted guaranty and letter of support and related documentation included in Appendix 16 of the WTPA, in favor of SAWS from ▇▇▇▇▇▇ Companies, Inc., as described in Section 1.4(b)(ix).
(b) Sellers shall deliver or execute or cause to be executed and delivered to Purchaser at Closing:
i. Documentation necessary to transfer the Conveyed Interests, free and clear of all liens or other claims such that Purchaser owns the Conveyed Interests, in the form agreed to between Seller and Purchaser, in their reasonable discretion.
ii. Seller shall execute and deliver to Purchaser (i) a unanimous consent document which shall appoint the board of directors, which board will include one director appointed by Seller, and appoint Purchaser as the manager of Abengoa Vista Ridge and (ii) such amendments to the controlling documents of Abengoa Vista Ridge as Purchaser may reasonably require to reflect the changes brought about by this Agreement.
iii. A copy of the release from Abengoa Greenbridge, S.A.U. of the debt assumed by Abengoa Vista Ridge under certain Contrato de Crédito Recíproco (Reciprocal Credit Agreement) dated December 17, 2014.
iv. Written approvals, consents and acceptances of the mutual release contemplated by Section 1.4(b)(vi) above from CTRWSC, in the form agreed to between Seller and Purchaser, in their reasonable discretion.
v. An accounting of sums paid as per Letter of Intent dated December 12, 2014 between Abengoa Vista Ridge and Abeinsa, and any necessary documentation required by Purchaser confirming that no future obligations remain outstanding.
vi. A release by Seller of amounts due to Seller by Abengoa Vista Ridge under the terms of the Reciprocal Credit Agreement dated December 1, 2014, all of which amounts due shall be deemed converted to constitute Seller’s contribution to capital in Abengoa Vista Ridge in the Amended and Restated Company Agreement.
vii. Documents as may be necessary to provide Abengoa Vista Ridge (i) a no fee license to use the name “Abengoa” as a part of the name of Abengoa Vista Ridge, and
(ii) to the extent not already owned by Abengoa Vista Ridge, title to intellectual property developed by Seller Parties for the exclusive use of the Project, if any.
(c) At or prior to Closing Seller Parties must have received each of the following items:
(i) a stock certificate evidencing A fully executed general release from CTRWSC of all claims it may have against any of the SharesSeller Parties, duly endorsed Abengoa Vista Ridge and Abeinsa for any obligations owed by the Seller Parties or Abeinsa to CTRWSC, expressly including but not limited to any claims relating to all claims, rights and remedies at law or in blank or accompanied equity, for sums paid by stock powers or other instruments Abengoa Vista Ridge to Abeinsa at the direction of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;CTRWSC as the Bridge Loan Proceeds.
(ii) written letters A fully executed modification to, or other contractual arrangement having the following effect with respect to, the Guarantee Agreement relating to the Bridge Loan, entered into between Abengoa and the Lenders, on or about July 20, 2015 as may have been amended or modified, including but not limited to, any amendment or modification effected in connection with the restructuring of resignationand/or reorganization of the debt and/or obligations of Abengoa Parent (the “Parent Guaranty”), effective which modification shall provide that (i) the guarantors thereunder shall have no obligations thereunder unless and until the WTPA has been terminated by SAWS, and (ii) which Parent Guaranty shall be released in full upon the occurrence of Financial Close (as that term is defined in the WTPA), and shall be in a form approved by Seller Parties.
(iii) An agreement between Lenders and Seller as to the terms and conditions for the Lender Consent (as that term is defined below), as well as any modifications to the Bridge Loan which are required by Lenders or Seller in connection with such Lender Consent, which Bridge Loan modifications shall prohibit any further advancement of funds under the terms of the Bridge Loan beyond those which have been advanced as of the date of this Agreement, which Consent and modifications to the Bridge Loan will be in a form approved by Purchaser Parties, Seller Parties and Lenders.
(iv) Lenders have provided a release of any and all claims Lenders may have against those employees, officers and/or directors or individual managers of the Seller Parties, Abengoa Vista Ridge, Abeinsa or CTRWSC listed on Schedule 1.5(c)(v), in connection with any matters relating to the Bridge Loan that are extant as of the Closing Date, whether known or unknown, including, but not limited to, the use or application of the Bridge Loan Proceeds, and shall be in a form reasonably acceptable to Seller Parties.
(d) At or prior to Closing Purchaser Parties and Seller Parties have received each of the following items:
(i) An agreement between Lenders and Purchaser as to the terms and conditions for Lender consent to the change in control caused by the sale of the Conveyed Interest to Purchaser (the “Lender Consent”), as well as any modifications to the Bridge Loan which are required by Lenders or Purchaser in connection with such Lender Consent.
(ii) Satisfactory confirmation that all litigation in connection with CAUSE NO. D-1-GN-15-005744, METROPOLITAN WATER COMPANY, L.P., Plaintiff, v. BLUE WATER SYSTEMS LP; BLUE WATER REGIONAL SUPPLY PROJECT, LP; BLUE WATER VISTA RIDGE, LLC; ABENGOA VISTA RIDGE LLC; and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee of the Burleson/▇▇▇▇▇ Master Lease Trust, Defendants. IN THE DISTRICT COURT ▇▇▇▇▇▇ COUNTY, TEXAS 201st JUDICIAL DISTRICT, shall be resolved to the satisfaction of Purchaser Parties, Seller Parties and SAWS (the “Met Water Suit”); provided, however, no approval and consent from the Seller Parties with respect to the Met Water Suit shall be required if, prior to Closing Seller Parties receive a full release from Metropolitan Water Company, L.P. and any of its Affiliates for any and all claims it may have against Seller Parties.
(iii) A fully executed certification in the form as set out on Schedule 1.5(d)(iii) from SAWS, with the content to be updated by SAWS to be true and correct as of the date of Closing; provided, however in the event the content is materially different than the form attached, the certifications shall not be deemed to have satisfied this condition unless accepted and approved by Purchaser.
(iv) A fully executed certification in the form set out on Schedule 1.5(d)(iv) from each Blue Water, with the content to be updated by Blue Water to be true and correct as of the date of Closing; provided, however in the event the content is materially different than the form attached, the certifications shall not be deemed to have satisfied this condition unless accepted and approved by Purchaser.
(v) The fully executed Amended and Restated Company Agreement under the terms of which Purchaser will appoint all of the members of the board Board of directors Directors, with the exception of one member of the Acquired Companies;
(iii) each Board of the deliverables contemplated Directors, which shall be appointed by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;Seller.
(vi) a certificate A fully executed general release from Abeinsa of all claims it may have against any of the Secretary Purchaser Parties, Seller Parties, and Abengoa Vista Ridge for any obligations owed by the Purchaser Parties, Seller Parties, and Abengoa Vista Ridge to Abeinsa.
(vii) A fully executed agreement between Abengoa Vista Ridge, SAWS and Purchaser (the “O&M Option Agreement”), under the terms of which Seller agrees to (i) convey to SAWS the Operating Service Agreement (as that term is defined in the WTPA) rights retained by Seller, or an Assistant Secretary (or equivalent officerii) convey to any person who has acquired more than 50% of the Seller certifying Membership Interests from Purchaser, and as a part of such purchase requires that attached thereto are true and complete copies of all resolutions adopted by they also retain control or direct control over who will act as the board of directors Operating Service Provider (as that term is defined in the WTPA) under the terms of the Seller authorizing the executionOperating Service Agreement, delivery provided such option is exercised on or before Financial Close and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each exercise of the Transaction Documents to which the such option right, Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective paid the transactions contemplated by this Agreementamount of $6,000,000.00 cash.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Closing Deliveries. Subject In addition to any other documents to be delivered under the terms set forth hereinprovisions of this Agreement, at the Closing:
(a) At Seller shall (and the Closing, Member shall cause Seller to) deliver the Seller will deliver, or cause to be delivered, following to Buyer, all of which shall be in form and substance reasonably satisfactory to Buyer and its counsel:
(i) a stock certificate evidencing One or more bills of sale for all of the SharesAcquired Assets that are items of tangible personal property, substantially in the form attached hereto as Exhibit 2.7(a)(i), duly endorsed in blank or accompanied executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoSeller;
(ii) written letters An assignment of resignation, effective as of the Closing, from each of the members of the board of directors all of the Acquired CompaniesAssets that are items of intangible property (other than the Intellectual Property Assets), including the Assumed Contracts, substantially in the form attached hereto as Exhibit 2.7(a)(ii), duly executed by Seller (the “Assignment and Assumption Agreement”);
(iii) Assignments by each of Seller and the deliverables contemplated Member of all Intellectual Property Assets, in proper form for recordation against all registered Intellectual Property Assets with the United States Patent and Trademark Office, or other appropriate office, duly executed by Section 2.5(a)Seller;
(iv) certification Such other deeds, bills of sale, assignments, certificates of title, documents, and other instruments of transfer and conveyance as may reasonably be requested by Buyer;
(v) Copies of Seller’s articles of organization and operating agreement, each as amended to date, and certified as to accuracy by an officer of Seller;
(vi) A Certificate of Good Standing for Seller from the Company California Secretary of State and from each jurisdiction in accordance with Treasury Regulations Sections 1.1445-2(c)(3which it is qualified to do business, each dated no more than ten days prior to the Closing Date;
(vii) and 1.897-2(h)A certificate of a duly authorized officer of Seller, to be dated as of the Closing Date and signed by an officer of the CompanyDate, certifying that (A) the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions duly adopted by the board management committee and members of directors of the Seller Seller, authorizing and approving the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, and the consummation of the transactions contemplated hereby and therebyhereby, and (B) that all such resolutions are have not been rescinded or modified and remain in full force and effect as of the Closing, and are all (C) to the resolutions adopted incumbency and signatures of the officers of Seller executing this Agreement and any other document executed on behalf of Seller in connection with this Agreement and the transactions contemplated hereby and thereby; andhereby;
(viiviii) duly Certificates executed counterparts by (A) Seller and the Member as to each the accuracy of their representations and warranties as of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance date of this Agreement and as of the Transaction Documents Closing Date in accordance with Section 7.1 and as to which their compliance with and their performance of the Company is a partycovenants and obligations to be performed or complied with by them at or before the Closing in accordance with Section 7.2 and (B) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇ to their Knowledge as to the accuracy of Seller’s representations and warranties as of the date of this Agreement and as of the Closing Date in accordance with Section 7.1 and as to Seller’s compliance with and its performance of the covenants and obligations to be performed or complied with by Seller at or before the Closing in accordance with Section 7.2;
(ix) An escrow agreement in the form of Exhibit 2.7(a)(ix), executed by Seller, the Member 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy Escrow Agent (the “Indemnification Insurance PolicyEscrow Agreement”);
(x) A Manufacturing Agreement in the form attached hereto as Exhibit D;
2.7(a)(x) executed by Remington (B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A“Manufacturing Agreement”); and
(Cxi) duly executed counterparts to An affidavit of each of the Transaction Documents Member and Seller pursuant to Section 1445(b)(2) of the Code stating, under penalties of perjury, the Member’s and Seller’s United States taxpayer identification number and that the Member and Seller are not foreign persons, which affidavits comply with the requirements of Treasury Regulation Section 1.1445-2(b)(2).
(xii) An opinion of ▇▇▇▇▇▇▇▇▇ Traurig, LLP, dated as of the Closing Date, in the form of Exhibit 2.7(a)(xii);
(xiii) Releases of all Liens on the Acquired Assets, including, without limitation, a release from FirstMerit;
(xiv) A signed release from Remington regarding interests in the Seller’s Intellectual Property Assets;
(xv) A Termination Agreement between Seller and Oval Products, LLC terminating the License Agreement dated December 1, 2009;
(xvi) Agreements of all current employees that assign to Seller all rights to any Patents, Copyrights and Trade Secrets relating to the Business;
(xvii) Evidence of the termination by Seller of the employment of the Hired Active Employees, effective as of the Closing;
(xviii) Tax certificates requested by Buyer, including as required pursuant to (A) Section 54:50-38 of Title 54 of the New Jersey taxation statute, (B) under Ohio Revised Code Sections 5739.14, 5747.07, and 5751.10 and Cal. Rev. & Tax Cd. Sections 6811 and 18669;
(xix) Assignments of the Assigned Leases, duly executed by Seller;
(xx) A payoff letter from FirstMerit regarding the payment of the FirstMerit Loan.
(xxi) Such other documents as Buyer is a partyor its counsel may reasonably require.
(b) Buyer shall deliver the following to Seller, all of which shall be in form and substance reasonably satisfactory to Seller and its counsel:
(i) $5,650,000 by wire transfer to an account specified by ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, who will receive payment on behalf of Seller;
(ii) payThe Escrow Agreement, or cause to be paidexecuted by Buyer, on behalf together with the delivery of $1,650,000 (which is the sum of the Seller or Closing Adjustment Escrow Amount and the Acquired Companies, the following:
(AIndemnity Escrow Amount) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction ExpenseEscrow Agent thereunder, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in to an account specified by the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; andEscrow Agent;
(Biii) at the Closing, the Estimated Company Indebtedness $6,700,000 by wire transfer of immediately available funds to FirstMerit in payment for the amounts FirstMerit Loan;
(iv) The Assignment and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.Assumption Agreement, duly executed by Buyer;
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller Representative will deliver, or cause deliver to be delivered, to Buyerthe Purchaser:
(i) a stock certificate evidencing certificates representing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required appropriate stock transfer tax stamps affixed theretoaffixed;
(ii) written letters a release in the form of resignationExhibit A executed by each Seller (collectively, effective the “Seller Releases”);
(iii) a noncompetition agreement in the form of Exhibit B executed by each Seller (collectively, the “Noncompetition Agreements”);
(iv) a certificate in the form of Exhibit C, dated as of the ClosingClosing Date, from executed by each Seller confirming the satisfaction of the members conditions specified in Sections 6.1(a) through (e);
(v) a certificate in the form of Exhibit D of the secretary or assistant secretary of Eleviant Technologies, Inc. dated as of the Closing Date and attaching with respect to such Acquired Company (A) Eleviant Technologies, Inc.’s charter and all amendments thereto, certified by the Secretary of State of the jurisdiction of the Acquired Company’s incorporation not more than fifteen (15) Business Days prior to the Closing Date; (B) Eleviant Technologies, Inc.’s bylaws and all amendments thereto; (C) a certificate of good standing of the Acquired Company certified by the Secretary of State of the jurisdiction of the Acquired Company’s incorporation and each other jurisdiction where the Acquired Company is authorized to do business, each issued not more than five (5) Business Days prior to the Closing Date; (D) all resolutions of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)Eleviant Technologies, dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each Inc. on behalf of the Acquired Companies from relating to this Agreement and the secretary of state or similar Governmental Body transactions contemplated by this Agreement; and (E) incumbency and signatures of the jurisdiction under the applicable Laws in which each officers of the Acquired Companies is organizedEleviant Technologies, Inc. executing this Agreement or any other agreement contemplated by this Agreement;
(vi) a certificate an opinion of counsel substantially in the Secretary or an Assistant Secretary (or equivalent officer) form of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; andExhibit G;
(vii) duly executed counterparts a receipt for the Initial Purchase Price in form reasonably satisfactory to each of the Transaction Documents to which the Seller is a party and Purchaser;
(viii) such other documents or documents, instruments and agreements as Buyer the Purchaser reasonably requests and are reasonably necessary to consummate and make effective for the purpose of consummating the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and Purchaser will deliver to or on behalf of the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to BuyerRepresentative:
(i) a certificate the Initial Purchase Price, in proportion to the Seller Representative’ respective holdings of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the executionShares as set forth on Schedule A, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller accounts specified on Annex Schedule A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds certificate in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence form of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after Exhibit E, dated as of the Closing Date, executed by the Purchaser confirming the satisfaction of the conditions specified in Sections 6.2(a) and (b); and
(Biii) at such other documents, instruments and agreements as the Closing, Seller Representative reasonably request for the Estimated Company Indebtedness purpose of consummating the transactions contemplated by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedulethis Agreement.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller Sellers will deliver, deliver or cause to be delivered, delivered to Buyerthe Purchaser:
(i) a stock certificate evidencing release executed by each Seller, substantially in the Sharesform of Exhibit A (collectively, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe “Seller Releases”);
(ii) written letters addendums to employment agreements, substantially in the form of resignationExhibit B, executed by the Company and each of the Key Employees (collectively, the “Employment Agreements”);
(iii) the Escrow Agreement executed by each Seller and the Seller Representative;
(iv) resignations effective as of the ClosingClosing Date of each director and officer of each Acquired Company as the Purchaser may have requested in writing with reasonable advance notice prior to the Closing Date (and subject to the Purchaser appointing a substitute);
(v) a certificate of the Secretary or the Assistant Secretary of the Company, from dated the Closing Date, in a form reasonably satisfactory to the Purchaser, attesting to (A) the Governing Documents of each of the members Acquired Companies; (B) the resolutions of the board of directors of the Acquired Companies;
(iii) each Company authorizing the execution and delivery of this Agreement, the Ancillary Agreements, the issuance of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, and the consummation of the transactions contemplated hereby and thereby, and certifying that all such resolutions are were duly adopted and have not been rescinded or amended as of the Closing Date; and (C) the incumbency and signature of each officer of the Company who has executed this Agreement or any Ancillary Agreement;
(vi) a receipt for the Closing Consideration in full force form reasonably satisfactory to the Purchaser;
(vii) evidence to the reasonable satisfaction of the Purchaser and effect to the extent available that any and are all Encumbrances have been removed and/or released on the resolutions adopted in connection with Shares or as determined pursuant to Section 5.14(a);
(viii) the transactions contemplated hereby Registration Rights Agreement executed by each Seller and therebythe Seller Representative; and
(viiix) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or documents, instruments and agreements as Buyer the Purchaser reasonably requests and are reasonably necessary as required to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller Purchaser will cause the Company and its Subsidiaries to, deliver, deliver or cause to be delivered to Buyerthe Sellers:
(i) the Closing Consideration in proportion to the Sellers’ respective holdings of the Shares as set forth on Schedule I;
(ii) the Escrow Agreement executed by the Purchaser;
(iii) a certificate of the Secretary or an the Assistant Secretary of Dresser-Rand Group, dated the Closing Date, in a form reasonably satisfactory to the Seller Representative, attesting to: (or equivalent officerA) the resolutions of the Company certifying that attached thereto are true shareholders and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, execution and delivery and performance of this Agreement and the Transaction Documents to which Ancillary Agreements, (B) the Company is a party, issuance of the D-R Shares and the consummation of the transactions contemplated hereby and thereby, and certifying that all such resolutions are in full force were duly adopted and effect and are all have not been rescinded or amended as of the resolutions adopted in connection with Closing Date;
(iv) the transactions contemplated hereby and therebyRegistration Rights Agreement executed by Dresser-Rand Group; and
(iiv) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or documents, instruments and agreements as Buyer the Seller Representative reasonably requests and are reasonably necessary as required to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will deliver, deliver or cause to be delivered, delivered to Buyerthe Purchaser:
(i) a stock certificate evidencing ▇▇▇▇ of sale in the Shares, duly endorsed in blank or accompanied by stock powers or other instruments form of transfer Exhibit A (the “▇▇▇▇ of Sale”) duly executed in blank, with all required stock transfer tax stamps affixed theretoby each relevant member of the Seller Group;
(ii) written letters an assignment and assumption agreement in the form of resignation, effective as Exhibit B (the “Assignment and Assumption Agreement”) duly executed by each relevant member of the Closing, from each of the members of the board of directors of the Acquired CompaniesSeller Group;
(iii) each assignments of all Purchased Intellectual Property in the forms of Exhibit C-1 and C-2 (collectively, the “IP Assignments”) executed by the relevant members of the deliverables contemplated by Section 2.5(a)Seller Group;
(iv) certification from the Company Boscobel Supply Agreement executed by the Seller;
(v) the Clearshield Supply Agreement executed by the Seller;
(vi) the Menasha Lease Agreement executed by the Seller;
(vii) the Maraflex Supply Agreement executed by the Seller;
(viii) the Material Supply Agreement executed by the Seller;
(ix) the Seller Transition Services Agreement executed by the Seller;
(x) the Purchaser Transition Services Agreement executed by the Seller;
(xi) for the Owned Real Property, a duly executed quitclaim deed or such other appropriate document or instrument of transfer in accordance with local custom, each in form and substance reasonably satisfactory to the Purchaser and its counsel and executed by the relevant members of the Seller Group;
(xii) a certificate executed by the Seller and each member of the Seller Group selling Purchased Assets providing that it is not a “foreign person” as defined in Section 1445 of the Code (in form and substance reasonably satisfactory to the Purchaser) that satisfies the requirements of Treasury Regulations Sections Regulation Section 1.1445-2(c)(32(b)(2);
(xiii) and 1.897-2(h)a certificate, dated as of the Closing Date and signed Date, executed by an officer the Seller confirming the satisfaction of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1conditions specified in Sections 6.1(a) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(26.1(b);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(viixiv) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments of sale, transfer, conveyance and assignment as Buyer the Purchaser reasonably requests and are reasonably necessary to consummate and make effective for the purpose of consummating the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller Purchaser will cause the Company and its Subsidiaries to, deliver, deliver or cause to be delivered to Buyerthe Seller:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses Purchase Price by wire transfer of immediately available funds in the amounts and U.S. dollars to the payees identified on account(s) specified by the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within Seller no later than two (2) Business Days after payment is made for payments prior to be made after the Closing Date;
(ii) the Assignment and Assumption Agreement duly executed by the Purchaser;
(iii) the ▇▇▇▇ of Sale and the IP Assignments, if any, that call for a signature by the Purchaser, duly executed by the Purchaser;
(iv) the Boscobel Supply Agreement executed by the Purchaser;
(v) the Clearshield Supply Agreement executed by the Purchaser;
(vi) the Menasha Lease Agreement executed by the Purchaser;
(vii) the Maraflex Supply Agreement executed by the Purchaser;
(viii) the Material Supply Agreement executed by the Purchaser;
(ix) the Seller Transition Services Agreement executed by the Purchaser;
(x) the Purchaser Transition Services Agreement executed by the Purchaser;
(xi) a certificate, dated as of the Closing Date, executed by the Purchaser confirming the satisfaction of the conditions specified in Sections 6.2(a) and 6.2(b); and
(Bxii) at such other instruments of assumption as the Closing, Seller reasonably requests for the Estimated Company Indebtedness purpose of consummating the transactions contemplated by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedulethis Agreement.
Appears in 1 contract
Closing Deliveries. Subject to The Purchaser must have received the terms set forth herein:
(a) At the Closing, the Seller will deliver, or cause to be delivered, to Buyerfollowing:
(i) a stock certificate evidencing CCAA Court certified copy of each of the SharesBidding Procedures Order, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe Approval Order and the Aralez Canada CCAA Termination Order;
(ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companiescertificates referred to in Section 7.1(a) and Section 7.1(b);
(iii) each the originals of the deliverables contemplated by Section 2.5(a)Books and Records;
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated resignations effective as of the Closing Date Effective Time of each director and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)Corporation;
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies releases from the secretary Vendor and its Affiliates (other than the Corporation) of state all claims they may have against the Corporation, or similar Governmental Body other documentation evidencing the settlement and release (including via set-off of any amounts owing by the jurisdiction under Corporation to the applicable Laws Vendor of its other Affiliates) of all such claims, in which each of a form acceptable to the Acquired Companies is organizedPurchaser, acting reasonably;
(vi) a certificate the Purchased Shares duly endorsed to the Vendor;
(vii) each of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents Ancillary Agreements to which the Seller Vendor or any of its Affiliates is a party, validly executed by a duly authorized representative of the Vendor or its applicable Affiliate;
(viii) a receipt acknowledging receipt of the Closing Payment, in satisfaction of the Purchaser’s obligations pursuant to Section 3.2, validly executed by a duly authorized representative of the Vendor;
(ix) evidence reasonably satisfactory to the Purchaser that a CCAA Court certified copy of the Monitor’s Certificates will be delivered to the Purchaser forthwith following Closing;
(x) a duly executed copy of the Deerfield Release Letter by Deerfield;
(xi) evidence that the Purchased Shares are free and clear of all Liens as set out in the Approval Order; and
(xii) evidence of 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementPre-Closing Reorganization.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Sources: Share Purchase Agreement (Aralez Pharmaceuticals Inc.)
Closing Deliveries. Subject to the terms set forth herein:
(a) At or prior to the Closing, the Seller will shall deliver, or cause to be delivered, to BuyerBuyer the following:
(i) a stock certificate evidencing the SharesGrant, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blankBargain, with all required stock transfer tax stamps affixed thereto;
(ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)Sale Deed, dated as of the Closing Date Date, substantially in the form appended hereto as Exhibit C (the "Grant, Bargain, Sale Deed"), and signed in proper statutory form for recording, conveying fee simple title to the Premises to Buyer, subject only to Permitted Title Exceptions, duly executed by an authorized officer of the CompanySeller;
(ii) an Assignment and Assumption Agreement, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) dated as of the Code Closing Date, substantially in the form appended hereto as Exhibit D (the "Assignment and proof reasonably satisfactory Assumption Agreement"), duly executed by an authorized officer of Seller;
(iii) a Bill of Sale, dated as of the Closing Date, substantially in the ▇▇▇▇ appended hereto as Exhibit E (the "Bill of Sale"), and an assignment of the Warranties, duly execute▇ ▇▇ an authorized officer of Seller;
(iv) title certificates to Buyer that all Vehicles included in the Company shall have provided notice to the IRS in accordance with the provisions Personal Property and applicable or requisite bills of Treasury Regulations Section 1.897-2(h)(2)sale for said Vehicles, duly executed by an authorized officer of Seller;
(v) a good standing certificate (or its equivalentwritten statement duly executed by an authorized officer of Seller certifying to Buyer that the conditions set forth in Sections 5.1(b) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedand 5.1(c) shall have been satisfied;
(vi) a certificate pursuant to Section 7.1, any Insurance Proceeds received by Seller on or before the Closing Date, together with an assignment to or assertion for the benefit of the Secretary Buyer all of Seller's rights against any insurance companies, Governmental Authority, or an Assistant Secretary (others with respect to such damage, Destruction or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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 therebytaking; and
(vii) duly executed counterparts to each of the Transaction Documents to any other documents, instruments or agreements called for under this Agreement which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreementhereby and have not previously been delivered.
(b) At or prior to the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, shall deliver, or cause to be delivered, to Seller the Sellerfollowing:
(Ai) evidence cash in the amount of the purchase by Buyer of an insurance policy Purchase Price (the “Indemnification Insurance Policy”subject to Section 8.2(c)) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a partyfunds;
(ii) paythe Assignment and Assumption Agreement, or cause to be paid, on behalf duly executed by an authorized officer of the Seller or the Acquired Companies, the following:Buyer;
(Aiii) at a written statement duly executed by an authorized officer of Buyer certifying to Seller that the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds conditions set forth in the amounts Sections 5.2(b) and to the payees identified on the Company Transaction Expense Schedule. Buyer 5.2(c) shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Datebeen satisfied; and
(Biv) at any other documents, instruments or agreements called for under this Agreement which are necessary to consummate the Closingtransactions contemplated hereby and have not previously been delivered.
(c) Buyer shall withhold from the Purchase Price such amount therefrom as Buyer reasonably estimates is necessary to comply with the provisions of NRS 360.525 and 612.695 until such time as Buyer obtains a certificate of the amount due from the Nevada Department of Taxation pursuant to NRS 360.525 and Seller furnishes Buyer with a receipt or certificate from the administrator of the Nevada Employment Security Division of the Nevada Department of Employment, Training and Rehabilitation showing all contributions and forfeits have been paid or none are due pursuant to NRS 612.695. If Seller does not produce such receipt or certificate within the Estimated Company Indebtedness by wire transfer of immediately available funds time period specified in the amounts and NRS 612.695, Buyer shall pay such withheld sum to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Scheduleappropriate authority.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Colony Resorts LVH Acquisitions LLC)
Closing Deliveries. Subject Administrative Agent shall have received each of the following documents, instruments and agreements, each of which shall be in form and substance and executed in such counterparts as shall be acceptable to Administrative Agent and Required Banks and each of which shall, unless otherwise indicated, be dated the terms set forth herein:
(a) At the Closing, the Seller will deliver, or cause to be delivered, to Buyerdate hereof:
(i) a stock certificate evidencing Note payable to the Sharesorder of each Bank, each in the amount of such Bank’s Commitment Percentage of the Maximum Total Commitment Amount, duly endorsed in blank or accompanied executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoBorrower;
(ii) written letters of resignationthe Mortgages and Assignments and Amendments to Mortgages to be executed on the Closing Date pursuant to Section 6.1(a), effective duly executed and delivered by Borrower and each Restricted Subsidiary (as of the Closingapplicable), from each of the members of the board of directors of the Acquired Companiestogether with such other assignments, conveyances, amendments, agreements and other writings, including, 35 without limitation, UCC-1 and UCC-3 financing statements, in form and substance satisfactory to Administrative Agent;
(iii) each of the deliverables contemplated Restricted Subsidiary Guarantees duly executed by Section 2.5(a)SWAT, PBNR and POC;
(iv) certification from a Restricted Subsidiary Pledge Agreement duly executed by Borrower together with (A) to the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3extent not previously delivered pursuant to the terms of the Existing Chase Credit Agreement, certificates evidencing one hundred percent of the issued and outstanding Equity of SWAT, PBNR and POC of every class (all certificates delivered pursuant to this Section 7.1(a)(iv) and 1.897-2(hshall be duly endorsed or accompanied by duly executed blank stock powers), dated and (B) such financing statements executed by Borrower as of Administrative Agent shall request to perfect the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory Liens granted pursuant to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)such Restricted Subsidiary Pledge Agreement;
(v) a good standing certificate (or its equivalent) for each Certificates of Ownership Interests substantially in the Acquired Companies from the secretary form of state or similar Governmental Body Exhibit H, duly executed and delivered by an Authorized Officer of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedBorrower, SWAT, PBNR and/or POC, as applicable;
(vi) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel for Borrower, favorably opining as to such matters as Administrative Agent or Required Banks may request;
(vii) a certificate dated the Closing Date executed by an Authorized Officer of Borrower stating that (A) the Secretary or an Assistant Secretary (or equivalent officer) representations and warranties of Borrower contained in this Agreement and the Seller certifying that attached thereto other Loan Papers are true and complete copies correct in all respects, (B) no Default or Event of Default has occurred which is continuing, and (C) all conditions set forth in this Section 7.1 and Section 7.2 have been satisfied;
(viii) such resolutions, certificates and other documents relating to the existence of the Companies, the corporate authority for the execution, delivery and performance of this Agreement, the Notes, the Mortgages, the other Loan Papers, and certain other matters relevant hereto, in form and substance satisfactory to Administrative Agent, which resolutions, certificates and documents include resolutions adopted by of the board of directors of each of the Seller Companies authorizing the execution, delivery and performance of this Agreement the Loan Papers and certificates of incumbency for each Company;
(ix) such UCC-11 search reports as Administrative Agent shall require, prepared as of a date not more than twenty (20) days prior to the Transaction Documents Closing Date, conducted in such jurisdictions and reflecting such names as Administrative Agent shall request;
(x) an opinion of ▇▇▇▇▇▇ & Whitney, LLP, special Colorado counsel for Borrower dated the Closing Date, favorably opining as to which the Seller is a party, and the consummation enforceability of the transactions contemplated hereby Mortgages and therebyAssignments and Amendments to Mortgages in Colorado and otherwise in form and substance satisfactory to Administrative Agent and Banks;
(xi) an opinion of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Gum, L.L.P., special Oklahoma counsel for Administrative Agent dated the Closing Date, favorably opining as to the 36 enforceability of the Mortgages and that all such resolutions Assignments and Amendments to Mortgages in Oklahoma and otherwise in form and substance satisfactory to Administrative Agent and Banks;
(xii) a report or reports in form, scope and detail acceptable to Administrative Agent from environmental engineering firms acceptable to Administrative Agent setting forth the results of a review of Borrower’s and its Restricted Subsidiaries’ (as applicable) oil and gas properties and operations, which report(s) shall not reflect the existence of facts or circumstances which would constitute a material violation of any Applicable Environmental Law or which are likely to result in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and therebya material liability to any Company; and
(viixiii) duly executed counterparts to each of certificates from Borrower’s insurance broker setting forth the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated insurance maintained by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company Borrower and its Subsidiaries toSubsidiaries, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying stating that attached thereto are true such insurance is adequate and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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 complies with the transactions contemplated hereby and thereby; and
(ii) duly executed counterparts to each requirements of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementSection 9.6.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Closing Deliveries. Subject In addition to any other documents to be delivered or other conditions to be satisfied or obligations to be performed under other provisions of this Agreement and/or the Local Country Purchase Agreements, at or prior to the terms set forth hereinClosing:
(a) At the Closing, the Seller will deliver, Sellers shall have delivered or cause otherwise provided (or caused to be delivered, to Buyer:have been delivered or otherwise provided):
(i) a stock certificate evidencing the Shares▇▇▇▇ of Sale and Assignment and Assumption Agreement for all the Acquired Assets and Assumed Liabilities in the form of Exhibit 2.7(a)(i) (the “▇▇▇▇ of Sale and Assignment and Assumption Agreement”), duly endorsed in blank or accompanied executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoeach Seller;
(ii) written assignments of all Intellectual Property Rights and Licensed Rights, if any, and separate assignments of all Registered Intellectual Property Rights, if any, in form and substance satisfactory to Buyer, duly executed by each Seller, as applicable;
(iii) for each interest in real property, a recordable general warranty deed, an Assignment and Assumption of Lease or such other appropriate document or instrument of transfer, as the case may require, each in form and substance satisfactory to Buyer and its legal counsel and executed by each Seller, as applicable;
(iv) such other customary deeds, bills of sale, assignments, certificates of title, documents, affidavits and other instruments of transfer and conveyance as may reasonably be requested by Buyer, each in form and substance satisfactory to Buyer and its legal counsel and executed by each Seller, as applicable;
(v) employment agreements in a form reasonably acceptable to Buyer, duly executed by each of [***] (collectively, the “Employment Agreements”);
(vi) a customary pay-off letter or letters for all Indebtedness secured by any Encumbrance (other than Permitted Encumbrances) on the Acquired Assets, evidencing the total pay-off amount thereof (the “Loan Payoff Amount”) and indicating the release, upon payment of resignationthe Loan Payoff Amount, effective of all such Encumbrances and otherwise in form and substance reasonably satisfactory to Buyer and its legal counsel;
(vii) an escrow agreement in the form of Exhibit 2.7(a)(vii) (the “Escrow Agreement”), duly executed by each Seller and the Escrow Agent;
(viii) non-competition and non-solicitation agreements in the form of Exhibit 2.7(a)(viii) (collectively, the “Non-Competition and Non-Solicitation Agreements”), duly executed by each of the individuals listed on Schedule 2.7(a)(viii) attached hereto.
(ix) a certificate pursuant to and in the form described in Treasury Regulations Section 1.1445-2(b)(2), certifying that each of GES and GES Holdings is not a foreign person within the meaning of Code Sections 1445 and 897 (a “FIRPTA Certificate”) (which FIRPTA Certificate shall be prepared by and provided to Sellers by Buyer). Notwithstanding anything to the contrary in this Agreement, if Buyer does not obtain the FIRPTA Certificate from GES and GES Holdings, Buyer shall be entitled to proceed with the Closing and withhold from the Purchase Price (and any adjustment thereto) otherwise payable to Sellers, as applicable, the appropriate amounts required to be withheld pursuant to Code Section 1445; Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions marked [***].
(x) a certificate of the Secretary (or equivalent thereof) of each Seller certifying, as complete and accurate as of the Closing, from each attached copies of the members Governing Documents of the each Seller, certifying and attaching all requisite resolutions or actions of each Seller’s board of directors (or equivalent thereof) and equity holders approving the execution and delivery of this Agreement, the documents executed in connection with this Agreement and/or delivered hereby, the consummation of the Acquired CompaniesContemplated Transactions and the change of name of each Seller contemplated by Section 7.9, and certifying to the incumbency and signatures of the officers of each Seller executing this Agreement and any other document relating to the Contemplated Transactions, accompanied by the requisite documents for amending the relevant Governing Documents of each Seller required to effect such change of name in form sufficient for filing with the appropriate Governmental Body;
(iiixi) the Consents and Governmental Authorizations set forth in Schedule 2.7(a)(xi), duly executed by the applicable Governmental Body or other Third Party, or, if applicable, evidence, in a form and substance satisfactory to Buyer in its sole and absolute discretion, that Buyer will be able to operate the Business as normal, pending the issuance of any such Consent or Government Authorization that is not obtained prior to Closing;
(xii) if requested by Buyer, any Consents or other instruments that may be required to permit Buyer’s qualification in each jurisdiction in which Sellers are licensed or qualified to do business as a foreign corporation or entity under the name “GES” or any derivative thereof;
(xiii) releases of all Encumbrances on the Acquired Assets (other than Permitted Encumbrances) pursuant to release documents satisfactory to Buyer;
(xiv) certificates dated as of a date reasonably acceptable to Buyer as to the good standing of each Seller and payment of all applicable Taxes by Sellers, executed by the appropriate officials of the deliverables contemplated by Section 2.5(ajurisdiction where each Seller is organized and each jurisdiction in which each Seller is licensed or qualified to do business as a foreign corporation or entity as specified in Schedule 3.1(a);
(ivxv) certification from evidence satisfactory to Buyer that Sellers have terminated all Current Employees, other than the Company in accordance Current Employees of GES Vietnam;
(xvi) evidence that Sellers have assigned to Buyer, effective upon Closing, any existing non-compete agreements with Treasury Regulations Sections 1.1445-2(c)(3current employees of Sellers; and
(xvii) and 1.897-2(h)[RESERVED.]
(xviii) a certificate, dated as of the Closing Date and signed by an a duly authorized officer of each Seller, to the Company, certifying effect that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) each of the Code conditions set forth in Sections 6.2(b) and proof reasonably satisfactory to 6.2(c) have been satisfied.
(b) Buyer that the Company shall have provided notice delivered (or caused to have been delivered):
(i) to Sellers’ Representative, the Base Purchase Price plus the Estimated Closing Adjustment Amount, if any, less the Escrow Amount less one-half of the fees due to the IRS Escrow Agent less the Loan Payoff Amount less the Excess Vietcom Bank Indebtedness, if any, by wire transfer to an account or accounts and in accordance such amounts specified by Sellers’ Representative in writing; Certain information in this document has been omitted and filed separately with the provisions Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions marked [***].
(ii) The Escrow Agreement, executed by Buyer and the Escrow Agent, together with the delivery to the Escrow Agent of Treasury Regulations Section 1.897the Escrow Amount plus the fees due to the Escrow Agent thereunder by wire transfer to an account specified by the Escrow Agent;
(iii) the ▇▇▇▇ of Sale and Assignment and Assumption Agreement, the Employment Agreements, and the Non-2(h)(2)Competition and Non-Solicitation Agreements, each duly executed by Buyer;
(iv) to the Persons specified, and as directed, in the applicable pay-off letters, the Loan Payoff Amount;
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) to Sellers, a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying, as complete and accurate as of the Seller certifying that Closing, attached thereto are true and complete copies of the Governing Documents of Buyer and certifying and attaching all requisite resolutions adopted by the or actions of Buyer’s board of directors of approving the Seller authorizing the execution, execution and delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, and the consummation of the transactions contemplated hereby Contemplated Transactions and thereby, certifying to the incumbency and that all such resolutions are in full force signatures of the officers of Buyer executing this Agreement and effect and are all any other document relating to the resolutions adopted in connection with the transactions contemplated hereby and therebyContemplated Transactions; and
(viivi) to Sellers, a certificate, dated the Closing Date and signed by a duly executed counterparts authorized officer of Buyer to the effect that each of the Transaction Documents to which the Seller is a party conditions set forth in Sections 6.1(a) and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement6.1(b) has been satisfied.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Sources: Asset Purchase Agreement (Kimball Electronics, Inc.)
Closing Deliveries. Subject 8.01 The transactions contemplated herein shall be completed at the offices of the Purchaser’s Solicitors on the Closing Date.
8.02 On the Closing Date, the Vendor shall deliver or cause to be delivered the terms set forth hereinfollowing documents and instruments:
(a) At the Closing, the Seller will deliver, or cause to be delivered, to Buyer:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;
(ii) written letters of resignation, effective as of the Closing, from each of the members A certified resolution of the board of directors of the Acquired CompaniesVendor approving this Agreement and the transactions contemplated herein;
(iiib) A copy of the Non-Competition and Non-Solicitation Agreement, duly executed by each of the deliverables contemplated by Section 2.5(a)Key Personnel;
(ivc) certification A copy of the Share Purchase Agreement, duly executed by the Vendor;
(d) A copy of the Consulting Agreement, duly executed by the Vendor;
(e) A copy of the Assignment, duly executed by the Vendor;
(f) A copy of the Iraq Licence Agreement, duly executed by the Vendor;
(g) A termination of the Albanian Licence Agreement and a full release of the Vendor and AlbaniaCo thereunder;
(h) Share Certificate representing the AlbaniaCo Shares issued in the name of the Vendor duly endorsed for transfer:
(i) A Share Certificate representing the AlbaniaCo Shares registered in the name of the Purchaser;
(j) Duly signed resignations of Sejdin Berhamaj and R▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as directors and officers of AlbaniaCo;
(k) Complete and integral file wrappers and case histories of the Technology, inclusive of all patent/application status, documents filed before the respective Patent Offices and all official communication issued from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3Patent Offices;
(l) and 1.897-2(h), dated as Any other documents reasonably required by the Purchaser to fully give effect to the transfer of the Closing Date and signed by an officer of Technology from the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice Vendor to the IRS Purchaser in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);terms herein.
8.03 On the Closing Date, the Purchaser shall deliver or cause to be delivered the following documents and instruments:
(va) a good standing certificate (or its equivalent) for each A certified resolution of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of Purchaser approving this Agreement and the Transaction Documents to which the Seller is a party, and the consummation transactions contemplated herein;
(b) A copy of the transactions contemplated hereby Convertible Debenture, duly executed by the Purchaser;
(c) Documents evidencing registration and therebyperfection of the security interest established by the Convertible Debenture;
(d) A copy of the Share Purchase Agreement, and that all such resolutions are in full force and effect and are all duly executed by the resolutions adopted in connection with Purchaser;
(e) A copy of the transactions contemplated hereby and therebyConsulting Agreement, duly executed by the Purchaser;
(f) A copy of the Assignment, duly executed by the Purchaser;
(g) A copy of the Iraq Licence Agreement, duly executed by the Purchaser; and
(viih) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such Such other documents or instruments as Buyer reasonably requests and are reasonably necessary required by the Vendor to consummate and make effective complete the transactions contemplated by this Agreementhereunder.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will deliver, On or cause prior to be delivered, to Buyer:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;
(ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company willshall issue, and the Seller will cause the Company and its Subsidiaries to, deliver, deliver or cause to be delivered to Buyer:each Purchaser the following (the “Company Deliverables”):
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted this Agreement, duly executed by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; andCompany;
(ii) duly one or more stock certificates, free and clear of all restrictive and other legends (except as provided in Section 4.1(b) hereof), evidencing the Shares subscribed for by Purchaser hereunder, registered in the name of such Purchaser as set forth on the Stock Certificate Questionnaire included as Exhibit C-2 hereto or otherwise deliver such Shares by electronic delivery to such Purchaser’s balance account at DTC or a similar organization;
(iii) a Warrant, executed counterparts by the Company and registered in the name of such Purchaser as set forth on the Stock Certificate Questionnaire included as Exhibit C-2 hereto, pursuant to each which such Purchaser shall have the right to acquire such number of Warrant Shares equal to 40% of the Transaction Documents number of Shares issuable to which such Purchaser pursuant to Section 2.2(a)(ii), rounded up to the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective nearest whole share, on the transactions contemplated by this Agreement.terms set forth therein;
(civ) Buyer will:
(i) at the Closinga legal opinion of Company Counsel, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D, executed by such counsel and addressed to the Purchasers and the Placement Agent;
(Bv) the Closing Date Payment by wire transfer of immediately available funds to the account designated Registration Rights Agreement, duly executed by the Seller on Annex A; andCompany;
(Cvi) duly executed counterparts Irrevocable Transfer Agent Instructions acknowledged in writing by the Transfer Agent;
(vii) a certificate of the Secretary of the Company (the “Secretary’s Certificate”), dated as of the Closing Date, (a) certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Securities, (b) certifying the current versions of the certificate or articles of incorporation, as amended, and by-laws of the Company and (c) certifying as to each the signatures and authority of persons signing the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, and related documents on behalf of the Seller or the Acquired CompaniesCompany, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.form attached hereto as Exhibit F;
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, GMI shall deliver to Acquirer the Seller will deliver, or cause to be delivered, to Buyer:following (the "GMI Closing Deliveries"):
(i) a stock certificate evidencing certificate(s) representing the GM Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all blank by GMI as of the Closing Date and bearing any required stock transfer tax stamps affixed theretolegend;
(ii) written letters the articles of resignationincorporation of GM, effective certified by the Secretary of State of Delaware;
(iii) the bylaws of GM;
(iv) a corporate good standing certificate for GM by the Secretary of State of Delaware;
(v) the articles of incorporation of GMI, certified by the Secretary of State of New York;
(vi) the bylaws of GMI, certified by the Secretary of GMI as of the Closing, from each Closing Date;
(vii) a corporate good standing certificate for GMI by the Secretary of the members State of New York;
(viii) resolutions of the board of directors of GMI approving this Agreement and the Acquired Companiestransactions contemplated hereby, certified by the Secretary of GMI as of the Closing Date;
(iiiix) each resolutions of the deliverables shareholders of GMI approving this Agreement and the transactions contemplated hereby, certified by Section 2.5(a)the Secretary of GM as of the Closing Date;
(ivx) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)Shareholders Agreement, dated as of the Closing Date Date, executed by GMI and signed PH Capital;
(xi) an incumbency certificate, dated as of the Closing Date, in form reasonably satisfactory to Acquirer, executed by the Secretary of GMI; and
(xii) a closing certificate, dated as of the Closing Date, in form reasonably satisfactory to Acquirer, executed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementGMI.
(b) At the Closing, Acquirer shall deliver to GMI the Company will, and following (the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:"Acquirer Closing Deliveries"):
(i) a certificate certificate(s) representing 42,500,000 shares of Acquirer Common Stock, duly executed by the President and Secretary of Acquirer as of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true Closing Date and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; andbearing any required legend;
(ii) certificates(s) representing 5,000 shares of Series A Preferred Stock, duly executed counterparts to each by the President and Secretary of Acquirer as of the Transaction Documents Closing Date and bearing any required legend;
(iii) the articles of incorporation of Acquirer, including any amendment thereto required to which increase the Company authorized number of shares of Acquirer Common Stock or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary otherwise to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(Biv) the Closing Date Payment by wire transfer bylaws of immediately available funds to the account designated Acquirer, certified by the Seller on Annex ASecretary of Acquirer as of the Closing Date;
(v) resolutions of the board of directors of Acquirer approving this Agreement and the transactions contemplated hereby, certified by the Secretary of Acquirer as of the Closing Date;
(vi) resolutions of the shareholders of Acquirer approving this Agreement and the transactions contemplated hereby, certified by the Secretary of Acquirer as of the Closing Date;
(vii) the PH Capital Option Agreement, dated as of the Closing Date, executed by PH Capital;
(viii) the VP Option Agreement, dated as of the Closing Date, executed by VP;
(ix) the Assignment Agreement, dated as of the Closing Date, executed by VP;
(x) the Assumption Agreement, dated as of the Closing Date, executed by Acquirer;
(xi) the Series B Purchase Agreement, dated as of the Closing Date, executed by MBP and Acquirer;
(xii) the Shareholders Agreement, dated as of the Closing Date, executed by Acquirer and VP;
(xiii) an incumbency certificate, dated as of the Closing Date, in form reasonably satisfactory to GMI, executed by the Secretary of Acquirer; and
(Cxiv) duly executed counterparts to each a closing certificate, dated as of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness in form reasonably satisfactory to GMI, executed by wire transfer an officer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleAcquirer.
Appears in 1 contract
Sources: Stock Exchange Agreement (American Pulp Exchange Inc)
Closing Deliveries. Subject The Buyer shall have received at or prior to the terms set forth herein------------------ Closing each of the following documents:
(a) At a ▇▇▇▇ of sale substantially in a form reasonably satisfactory to the Closing, the Seller will deliver, or cause to be delivered, to Buyer:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;
(iib) written letters such instruments of resignationconveyance, effective assignment and transfer, in form and substance satisfactory to the Buyer, as of shall be appropriate to convey, transfer and assign to, and to vest in, the ClosingBuyer, from each of good, clear, record and marketable title to the members of the board of directors of the Acquired CompaniesAssets;
(iiic) each of all technical data, formulations, product literature and other documentation relating to the deliverables contemplated by Section 2.5(a)Seller's business, all in form and substance satisfactory to the Buyer;
(ivd) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) such contracts, files and 1.897-2(h), dated as of the Closing Date other data and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice documents pertaining to the IRS in accordance with Assets or the provisions of Treasury Regulations Section 1.897-2(h)(2)Seller's business as the Buyer may reasonably request;
(ve) a good standing certificate (or its equivalent) for each copies of the Acquired Companies from the secretary general ledgers and books of state or similar Governmental Body account of the jurisdiction under Seller, and all federal, state and local income, franchise, property and other tax returns filed by the applicable Laws in which each of Seller with respect to the Acquired Companies is organizedAssets since June 30, 1992;
(vif) such certificates of the Seller's officers and such other documents evidencing satisfaction of the conditions specified in Section 7 as the Buyer shall reasonably request;
(g) a certificate of the Secretary or an Assistant Secretary of State of the Commonwealth of Massachusetts as to the legal existence and good standing (or equivalent officerincluding tax) of the Seller certifying that attached thereto are true and complete copies in the Commonwealth of all resolutions adopted by Massachusetts;
(h) certificates of the board of directors Clerk of the Seller authorizing attesting to the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, and the consummation incumbency of the transactions contemplated hereby and therebySeller's officers, and that all such resolutions are in full force and effect and are all respectively, the authenticity of the resolutions adopted in connection with the transactions contemplated hereby and thereby; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective authorizing the transactions contemplated by this the Agreement.
(b) At the Closing, the Company will, and the Seller will cause authenticity and continuing validity of the Company and its Subsidiaries to, deliver, or cause charter documents delivered pursuant to be delivered to Buyer:Subsection 2.1;
(i) a certificate estoppel certificates from each lessor from whom the Seller leases real or personal property consenting to the assumption of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted such lease by the board of directors of Buyer and representing that there are no outstanding claims against the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, and the consummation of the transactions contemplated hereby and thereby, and that all Seller under any such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit Dlease;
(Bj) a current UCC-11 search confirming the Closing Date Payment by wire transfer absence of immediately available funds to any UCC Financing Statements or other liens affecting the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a partyAssets;
(iik) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:schedules listed in Subsection 7.10;
(Al) at the Closing (or if a later due date is applicable with regard evidence in form satisfactory to the relevant Company Transaction Expense, at such later date), Buyer that the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and Seller's Hybird Microcircuit Certification has been transferred to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; andBuyer;
(Bm) at cross receipt executed by the ClosingBuyer and the Seller;
(n) such other documents, instruments or certificates as the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleBuyer may reasonably request.
Appears in 1 contract
Closing Deliveries. Subject The Buyer shall have received at or prior to the terms set forth hereinClosing such documents, instruments or certificates as the Buyer may reasonably request including, without limitation:
(a) At transfers of the ClosingShares executed by the Seller in favour of the Buyer;
(b) the share certificates for the Shares in the name of the Seller;
(c) the waivers, consents and other documents required to enable the Buyer to be registered as the holder of the Shares;
(d) an irrevocable power of attorney in agreed form given by the Seller in favour of the Buyer to enable the beneficiary to exercise all voting and other rights attaching to the Shares before the transfer of the Shares is registered in the register of members;
(e) the original of any power of attorney under which any document to be delivered to the Buyer under this Section 9.10 has been executed;
(f) in relation to the Company, the Seller will deliverstatutory registers and minute books (written up to the time of Closing), or cause to be deliveredthe common seal, to Buyercertificate of incorporation and any certificates of incorporation on change of name;
(g) the written resignation of the auditors of the Company accompanied by:
(i) a stock certificate evidencing statement in accordance with section 519 of the Shares, duly endorsed in blank Companies ▇▇▇ ▇▇▇▇ that there are no circumstances connected with the auditors' resignation which should be brought to the notice of the members or accompanied by stock powers or other instruments creditors of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;the Company; and
(ii) a written letters assurance that the resignation and statement have been, or will be, deposited at the registered office of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as section 519 of the Closing Date Companies ▇▇▇ ▇▇▇▇;
(h) statements from each bank at which the Company has an account, giving the balance of each account at the close of business on the last Business Day before Closing; all cheque books in current use by the Company and signed by an officer written confirmation that no cheques have been written since those statements were prepared; details of the Company, certifying that 's cash book balances; and reconciliation statements reconciling the Shares are not “United States real property interest” within cash book balances and the meaning of Section 897(c)(1cheque books with the bank statements delivered;
(i) of the Code all title deeds and proof reasonably satisfactory to Buyer that the Company shall have provided notice other documents relating to the IRS Properties (as defined in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2Appendix B hereto);
(vj) a good standing certificate (evidence, in agreed form, that any indebtedness or its equivalent) for each other liability of the Acquired Companies from the secretary kind described in Section 2.17 of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedAppendix B has been discharged;
(vik) a certificate of evidence, in agreed form, that the Secretary Company has been discharged from any responsibility for the indebtedness, or an Assistant Secretary (or equivalent officer) of for the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by default in the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement any obligation, of any other person; (l) to the extent applicable, all charges, mortgages, debentures and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents guarantees to which the Company is a partyparty and, 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; and
(ii) duly executed counterparts relation to each of the Transaction Documents to which the Company or such instrument and any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
covenants connected with it: (i) at the Closing, deliver, a sealed discharge or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) release in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex Aagreed form; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Closing Deliveries. Subject The Buyer shall have received at or prior to the terms set forth herein------------------ Closing each of the following documents:
(a) At a ▇▇▇▇ of sale substantially in the Closing, the Seller will deliver, or cause to be delivered, to Buyer:form attached as Exhibit K --------- hereto;
(ib) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or such other instruments of conveyance, assignment and transfer, in form and substance reasonably satisfactory to the Buyer, as shall be appropriate to convey, transfer duly executed and assign to, and to vest in, the Buyer, the Seller's interest in blankthe Purchased Assets (other than the leasehold interest in the Melville Facility), with all required stock transfer tax stamps affixed theretoexcept for the Permitted Encumbrances;
(iic) written letters such warranty deeds and instruments of resignationconveyance, effective assignment and transfer, in form and substance reasonably satisfactory to the Buyer, as shall be appropriate to convey, transfer and assign to, and to vest in, the Buyer, the Seller's leasehold interest in the Melville Facility, free and clear of the Closing, from each of the members of the board of directors of the Acquired CompaniesExceptions other than Permitted Exceptions;
(iiid) each such certificates of the deliverables contemplated by Seller's officers and such other documents evidencing satisfaction of the conditions specified in Section 2.5(a)6 as --------- the Buyer shall reasonably request;
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vie) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of State of the State of Delaware and each of the jurisdictions set forth on Schedule 2.1 as to the legal ------------ existence and good standing of the Seller certifying that attached thereto are true and complete copies in such jurisdictions;
(f) certificates of all resolutions adopted by the board of directors Secretary or Assistant Secretary of the Seller attesting to the incumbency of the Seller's officers, respectively, the authenticity of the resolutions authorizing the execution, delivery and performance of this Agreement and transactions contemplated by the Transaction Documents to which the Seller is a partyAgreement, and the consummation authenticity and validity of the transactions contemplated hereby charter documents;
(g) a title policy or policies (together, the "Title Policy") from ------------ one or more title companies reasonably acceptable to the Buyer and therebythe Buyer's lender (the "Title Insurer"), in form and that substance reasonably satisfactory to ------------- the Buyer and the Buyer's lender covering the interest in the Melville Facility being acquired by the Buyer;
(h) a survey of the Melville Facility prepared by a registered land surveyor in form and substance reasonably acceptable to the Buyer and its lender;
(i) such affidavits and indemnities executed by the Seller as the Title Insurer may reasonably require in order to omit from the Title Policy all such resolutions exceptions for (i) judgments, bankruptcies or other returns against persons or entities whose names are the same as or similar to the Seller; (ii) parties in full force possession; (iii) mechanics' liens; and effect (iv) hazardous waste (if applicable);
(j) a cross receipt executed by the Buyer and are all the resolutions adopted in connection with the transactions contemplated hereby and therebySeller; and
(viik) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents documents, instruments or instruments certificates as the Buyer may reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreementrequest.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) 6.2.1 At the Closing, the Seller will Transferor shall deliver, or cause to be delivered, to BuyerAcquiror:
(a) A fully executed ▇▇▇▇ of Sale and Assignment and Assumption in the form of Exhibit C to this Agreement (the "▇▇▇▇ of Sale") conveying to Acquiror all personal property to be acquired by Acquiror pursuant to this Agreement and providing for (i) a stock certificate evidencing the Sharesassignment to Acquiror of the contract rights, duly endorsed and all other intangible personal property included in blank or accompanied by stock powers or other instruments the Purchased Assets and (ii) Acquiror's assumption of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe Assumed Liabilities;
(iib) written letters A Certificate of resignation, effective as an officer of Transferor (i) certifying to the Closing, from each of the members attached resolutions of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)shareholders, dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by if the board of directors deems it necessary, of Transferor authorizing this transaction, and (ii) attesting to the incumbency of the Seller authorizing the execution, delivery and performance authorized officers of Transferor executing this Agreement and the Transaction Documents to which the Seller is a party, Transferor's closing documents;
(c) A duly authorized and the consummation executed Release Agreement required by Section 8.1.1;
(d) A Certificate of an authorized officer of the transactions contemplated hereby Transferor certifying as to the accuracy of the Transferor's representations and thereby, and that all such resolutions are in full force and effect and are all warranties under Section 7.1;
(e) All Consents necessary to permit Transferor to transfer the resolutions adopted in connection with the transactions contemplated hereby and therebyPurchased Assets to Acquiror; and
(viif) duly executed counterparts All necessary documents to each transfer and assign any Intellectual Property which is being transferred pursuant to this Agreement; and
(g) all of the Transaction Documents to which the Seller is a party books and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreementrecords of Transferor.
(b) 6.2.2 At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, Acquiror shall deliver, or cause to be delivered, to the SellerTransferor:
(Aa) evidence A counterpart copy of the purchase ▇▇▇▇ of Sale, executed by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit DAcquiror;
(Bb) A Certificate of an authorized officer of Acquiror (i) certifying attached resolutions of the Closing Date Payment by wire transfer boards of immediately available funds directors and shareholders of Acquiror authorizing this transaction, and (ii) attesting to the account designated incumbency of the authorized officer of Acquiror executing this Agreement and the Acquiror's closing documents;
(c) A duly authorized and executed Release Agreement as required by Section 8.1.1;
(d) A Certificate of an authorized officer of the Seller on Annex AAcquiror certifying as to the accuracy of the Acquiror's representations and warranties under Section 7.2;
(e) A Certificate of an authorized officer of the Acquiror certifying the number of shares that Transferor shall be entitled to in accordance with the terms and conditions of this Agreement; and
(Cf) duly executed counterparts A counterpart copy of necessary documents to each of the Transaction Documents transfer and assign any Intellectual Property which is being transferred pursuant to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedulethis Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Alternative Construction Company, Inc.)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will deliver, deliver or cause to be delivered, delivered to Buyerthe Purchaser:
(i) a stock certificate evidencing ▇▇▇▇ of sale in the Shares, duly endorsed in blank or accompanied form of Exhibit A (the “▇▇▇▇ of Sale”) executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe Seller;
(ii) written letters an assignment and assumption agreement in the form of resignation, effective as of Exhibit B (the Closing, from each of “Assignment and Assumption Agreement”) executed by the members of the board of directors of the Acquired CompaniesSeller;
(iii) for each parcel of Owned Real Property, a recordable warranty deed or such other appropriate document or instrument of transfer in a form customarily used in the deliverables contemplated jurisdiction where such property is located and in form and substance reasonably satisfactory to the Purchaser and its counsel and executed by Section 2.5(a)the Seller;
(iv) certification from a certificate, dated as of the Company Closing Date, executed by the Seller confirming the satisfaction of the conditions specified in accordance with Treasury Regulations Sections 1.1445-2(c)(36.1(a) and 1.897-2(h6.1(b);
(v) an employment agreement substantially in the form of Exhibit C executed by each of the employees of the Seller listed on Schedule 2.10(a)(vii) (collectively, the “Employment Agreements”);
(vi) a certification in the form of Exhibit D executed by each of the Members (or, if any Member is a “disregarded entity” under the Code, the owner(s) of such Member that are not disregarded entities) stating, under penalty of perjury, the Seller’s U.S. employer identification number and address and that the Seller is not a “foreign person” as defined in Section 1445 of the Code;
(vii) a certificate in the form of Exhibit E of a manager of the Seller dated as of the Closing Date and signed by an officer of attaching: (A) the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1Seller’s Organizational Documents; (B) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance extent any of Seller’s Organizational Documents are required to be registered with the provisions Secretary of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body State of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
Seller’s organization, copies of such Organizational Documents certified by the Secretary of State of the jurisdiction of the Seller’s organization dated not more than 5 business days prior to the Closing Date: (viC) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) good standing of the Seller certifying that attached thereto are true certified by the Secretary of State of the jurisdiction of the Seller’s organization and complete copies of issued not more than 5 business days prior to the Closing Date; (D) all resolutions adopted by of the board of directors managers and members of the Seller authorizing the execution, delivery and performance of relating to this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.; and (E) incumbency and signatures of the officers of the Seller executing this Agreement or any other agreement contemplated by this Agreement; and
(viii) each title insurance policy described in each Title Commitment, as amended, together with the endorsements thereto specified in Section 5.7(b);
(ix) a receipt for the Initial Purchase Price in form reasonably satisfactory to the Purchaser;
(x) an escrow agreement in the form of Exhibit F (the “Escrow Agreement”) executed by the Seller, the Members and Quad City (the “Escrow Agent”); and
(xi) a consulting agreement (the “Consulting Agreement”) executed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, in a form to be mutually agreed between Purchaser and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, providing for the provision of consulting services for the 45-day period following the Closing Date on the general terms set forth in the offer letter attached as Exhibit H.
(b) At the Closing, the Company will, and the Seller Purchaser will cause the Company and its Subsidiaries to, deliver, deliver or cause to be delivered to BuyerSeller:
(i) a certificate of the Secretary or an Assistant Secretary Initial Purchase Price (or equivalent officeras adjusted pursuant to Section 2.6) of less the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment Escrow Amount by wire transfer of immediately available funds to the account designated by the Seller specified on Annex Schedule A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) paythe Assignment and Assumption Agreement executed by the Purchaser;
(iii) the ▇▇▇▇ of Sale and the other assignments, if any, under Section 2.10(a)(iv) that call for a signature by the Purchaser;
(iv) a certificate, dated as of the Closing Date, executed by the Purchaser confirming the satisfaction of the conditions specified in Sections 6.2(a) and 6.2(b); and
(c) At the Closing, the Purchaser will deliver or cause to be paid, on behalf delivered to the Escrow Agent the balance of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses Escrow Amount by wire transfer of immediately available funds in into the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleEscrow Account.
Appears in 1 contract
Sources: Asset Purchase Agreement (Nova Biosource Fuels, Inc.)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will deliver, deliver or cause to be delivereddelivered to the Purchaser, to Buyerfor itself and as agent for the Designated Affiliates:
(i) a stock certificate evidencing ▇▇▇▇ of sale in the Sharesform of Exhibit B (the “▇▇▇▇ of Sale”), duly endorsed in blank or accompanied executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe Seller;
(ii) written letters an assignment and assumption agreement in the form of resignationExhibit C (the “Assignment and Assumption Agreement”), effective as of duly executed by the Closing, from each of the members of the board of directors of the Acquired CompaniesSeller;
(iii) each a share sale and transfer agreement in respect of the deliverables contemplated Shares in the form of Exhibit D (the “Share Transfer Agreement”), duly executed and notarized by Section 2.5(a)the Share Selling Affiliate;
(iv) certification from such deeds, documents, instruments and actions as are necessary or appropriate to effect the Company valid sale and transfer of the Shares to the Purchaser or its Designated Affiliate, duly executed by the Share Selling Affiliate, and/or the managing director or the Acquired Company, as required pursuant to German Law;
(v) assignments of all Purchased Intellectual Property in the forms of Exhibit E-1 and E-2 (collectively, the “IP Assignments”) and License of Shared Intellectual Property in the form of Exhibit E-3 (the “IP License Agreement”), duly executed by the Seller;
(vi) for each parcel of Owned Real Property, a recordable warranty deed or such other appropriate document or instrument of transfer in accordance with Treasury Regulations Sections 1.1445-2(c)(3local custom, each in form and substance reasonably satisfactory to the Purchaser and its counsel and executed by the Seller;
(vii) and 1.897-2(h)a certificate, dated as of the Closing Date and signed Date, executed by an officer the Seller confirming the satisfaction of the Company, certifying that the Shares are not “United States real property interest” within the meaning of conditions specified in Section 897(c)(16.1(a) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(26.1(b);
(vviii) a good standing certificate (or its equivalent) for each the resignations of the managing directors of the Acquired Companies from Company set forth on Schedule 2.9(a)(viii), to the secretary of state or similar Governmental Body of extent that such resignations have been requested in writing by the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedPurchaser not less than two (2) Business Days prior to Closing;
(viix) a certificate transition services agreement in the form of Exhibit F (the “Transition Services Agreement”), duly executed by the Seller;
(x) a supply agreement in the form of Exhibit G (the “TBT Supply Agreement”), duly executed by the Seller;
(xi) a supply agreement in the form of Exhibit H (the “TOT Supply Agreement”), duly executed by the Seller;
(xii) a supply agreement in the form of Exhibit I (the “TPP/LPE Supply Agreement”), duly executed by the Seller;
(xiii) an assignment of the Secretary or an Assistant Secretary environmental indemnity from Ciba contained in the Ciba Basic Agreement in the form of Exhibit J (or equivalent officerthe “Ciba Environmental Indemnity Assignment”);
(xiv) a copy of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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 therebyApproval Order; and
(viixv) duly executed counterparts to each evidence that notice of termination of the Transaction Documents to which Acquired Company’s participation in the Seller is a party domination and such other documents or instruments as Buyer reasonably requests profit and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreementloss pooling agreements has been made in accordance with German Law.
(b) At the Closing, the Company Purchaser will, for itself and the Seller will cause the Company and as agent for its Subsidiaries toDesignated Affiliate, deliver, deliver or cause to be delivered to Buyerthe Seller, for itself and as agent for the Share Selling Affiliate:
(i) a certificate of the Secretary or an Assistant Secretary Initial Cash Consideration, fifty percent (or equivalent officer50%) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors aggregate amount of the Company authorizing the execution, delivery and performance of this Agreement Trade Accounts Payable Adjustment Payment and the Transaction Documents to which the Company is a partyShared Accounts Payable Adjustment Payment, and the consummation of the transactions contemplated hereby Accrued Payroll 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Benefits Adjustment Payment by wire transfer of immediately available funds to in U.S. dollars in the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a partyamount and manner specified in Section 2.5(b);
(ii) paythe Assignment and Assumption Agreement, or cause to be paid, on behalf of duly executed by the Seller or the Acquired Companies, the following:Purchaser;
(Aiii) at the Closing ▇▇▇▇ of Sale, duly executed by the Purchaser;
(iv) the Share Transfer Agreement, duly executed and notarized by the Purchaser or its Designated Affiliate, as applicable;
(v) the IP Assignments, if any, that call for a later due date is applicable with regard to signature by the relevant Company Transaction ExpensePurchaser and/or its Designated Affiliates, at duly executed by the Purchaser and/or such later date)Designated Affiliates, as applicable, and the Company Transaction Expenses IP License Agreement, duly executed by wire transfer the Purchaser;
(vi) a certificate, dated as of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date, duly executed by the Purchaser confirming the satisfaction of the conditions specified in Sections 6.2(a) and 6.2(b);
(vii) the Transition Services Agreement, duly executed by the Purchaser;
(viii) the TBT Supply Agreement, duly executed by the Purchaser;
(ix) the TOT Supply Agreement, duly executed by the Purchaser;
(x) the TPP/LPE Supply Agreement, duly executed by the Purchaser; and
(Bxi) at the ClosingCiba Environmental Indemnity Assignment, duly executed by the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleAcquired Company.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will deliver, or cause to be delivered, to Buyer:
(i) a The Purchaser shall receive the stock certificate evidencing certificates representing the SharesCompany Stock, duly endorsed as set forth in blank or accompanied by stock powers or other instruments Section 1.2 hereof, and evidence, satisfactory to the Purchaser, of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;the cancellation of the ▇▇▇▇▇▇▇▇▇ Pledge.
(ii) written letters of resignation, effective as Any directors of the ClosingAcquired Entities, from each other than those identified on Schedule 6.2, shall have resigned as directors of such Acquired Entities and the members directors listed on Schedule 6.2 shall appoint the persons on Schedule 6.2 to fill the vacancies of the board of directors of the Acquired Companies;Entities in accordance with the Charter and Bylaws of each such Acquired Entity.
(iii) each The Company shall have entered into Employment Agreements with certain members of senior management of CMA and High-Rise, which shall be for a term of employment lasting at least 2 years, and otherwise on terms reasonably satisfactory to the deliverables contemplated by Section 2.5(a);Purchaser.
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company The Purchaser shall have provided notice to the IRS in accordance with the provisions received a copy of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant of State of the jurisdiction of incorporation of each of the Acquired Entities, dated reasonably near the Closing Date, in each case listing the charter of each of the Acquired Entities and each amendment thereto on file in his office and certifying that (w) such charter is a true and correct copy thereof, (x) such amendments are the only amendments to such charter on file in his office, (y) such Acquired Entity has paid all franchise taxes to the date of such certificate and (z) such Acquired Entity is duly incorporated and in good standing under the laws of the State of its jurisdiction of incorporation.
(v) The Purchaser shall have received a certificate of each Acquired Entity, signed on behalf of such Acquired Entity by its President and its Secretary, dated the Closing Date, certifying as to (x) the absence of any amendments to the Charter of such Acquired Entity since the date of the Secretary of State's certificate referred to in Subsection (or equivalent officeriv) of the Seller certifying that attached thereto are this Section 6.2(d), (y) a true and complete copies of all resolutions adopted by the board of directors correct copy of the Seller Bylaws of such Acquired Entity as in effect on the date on which the resolutions authorizing the execution, delivery transaction were adopted and performance on the Closing Date and (z) the due incorporation and good standing or valid existence of this Agreement such Acquired Entity as a corporation organized under the Laws of the jurisdiction of its incorporation and the Transaction Documents to which absence of any proceeding for the Seller is a party, and the consummation dissolution or liquidation of such Acquired Entity.
(vi) None of the transactions supplements to the Disclosure Schedule contemplated hereby and therebyby Section 8.5 shall, and in the good faith judgment of Purchaser, contain any disclosure that all such resolutions are reflects a material adverse change in full force and effect and are all the resolutions adopted in connection with results of operations, business, financial condition, liabilities or prospects of the transactions contemplated hereby and thereby; andAcquired Entities considered as a whole.
(vii) duly executed counterparts The Purchase shall have received evidence, satisfactory to each it, of the Transaction Documents contribution to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate capital of the Secretary or an Assistant Secretary (or equivalent officer) Acquired Entities all of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments Intercompany Indebtedness outstanding as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds prior to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Sources: Stock Purchase Agreement (Dualstar Technologies Corp)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the or prior to Closing, Sellers shall deliver the Seller will deliverfollowing to Buyer, or cause to be delivered, to unless waived by Buyer:
(i) a stock certificate evidencing Execution of assignments of the Shares, duly endorsed JV Equity Interests in blank or accompanied such form agreed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe Parties;
(ii) written letters of resignation, effective as Resolutions of the Closing, from boards of managers of each of the members JV Companies approving the transactions contemplated in this Agreement and the Associated Agreements and approval of amended and restated operating agreements (or comparable governing documents) of each of the board of directors JV Companies, each in such form reasonably acceptable to Buyer (the “JV Company Board Resolutions”), executed by each of the Acquired Sellers’ designees on the boards of managers of the JV Companies;
(iii) Resignations of each of each Seller’s designees on the deliverables contemplated by Section 2.5(a)boards of managers of the JV Companies in such form reasonably acceptable to Buyer;
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)The Investor Rights Agreement, dated as duly executed by each of the Closing Date and signed Sellers, in such form agreed by an officer of the Company, certifying that Parties (the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2▇▇▇”);
(v) a good standing certificate The Amended and Restated Lease, duly executed by Fasemex Mexico, as landlord thereunder, in such form agreed by the Parties (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;“A/R Lease”); and
(vi) a certificate The Royalty Agreement, duly executed by each of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted Sellers, in such form agreed by the board of directors of Parties (the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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“Royalty Agreement”); and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such Such other documents agreements or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective agreed by the transactions contemplated by this AgreementParties.
(b) At or prior to Closing (except as set forth below), Buyer (or Parent as applicable) shall deliver the Closingfollowing to the Sellers, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyerunless waived by Seller:
(i) a certificate Evidence of delivery of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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 Consideration Shares consistent with the transactions contemplated hereby and thereby; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a partySection 1.2;
(ii) payThe Closing Cash in accordance with the wire instruction furnished by Sellers, or cause to be paid, within one business day after Closing;
(iii) The JV Company Board Resolutions executed by each of Buyer’s designees on behalf the boards of managers of the Seller or the Acquired JV Companies, the following:;
(Aiv) at the Closing The ▇▇▇, duly executed by Parent;
(or if a later due date is applicable with regard to the relevant Company Transaction Expensev) The Royalty Agreement, at such later date), the Company Transaction Expenses duly executed by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing DateParent; and
(Bvi) at The A/R Lease, duly executed by Projection JV, as tenant; and
(vii) Such other agreements or instruments agreed by the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleParties.
Appears in 1 contract
Sources: Equity Purchase Agreement (FreightCar America, Inc.)
Closing Deliveries. Subject to the terms set forth herein:
(ai) At the Closing, Asset Purchaser shall deliver to Agilysys LLC the Seller will deliver, or cause to be delivered, to Buyerfollowing:
(iA) payment, by wire transfer to one or more bank accounts designated in writing by Agilysys LLC (such designation to be made by Agilysys LLC at least two business days prior to the Closing Date), an amount in immediately available funds equal, in the aggregate, to the Asset Purchase Price; and
(B) a stock counterpart to the ▇▇▇▇ of Sale and Assignment Agreement attached as Exhibit A hereto (the “▇▇▇▇ of Sale”), duly executed by Asset Purchaser.
(ii) At the Closing, Agilysys LLC shall deliver to Asset Purchaser the following:
(A) the Purchased Assets, free and clear of all Liens, other than Permitted Liens;
(B) evidence reasonably satisfactory to Asset Purchaser of removal of all Liens, other than Permitted Liens, from the Purchased Assets; and
(C) a counterpart to the ▇▇▇▇ of Sale duly executed by Agilysys LLC and such other deeds, bills of sale, endorsements, assignments and other instruments of conveyance and assignment reasonably necessary or appropriate to vest in the Asset Purchaser all right, title and interest in, to and under the Transferred Assets.
(iii) At the Closing, Purchaser shall deliver to Seller the following:
(A) payment, by wire transfer to one or more bank accounts designated in writing by Seller (such designation to be made by Seller at least two business days prior to the Closing Date), an amount in immediately available funds equal, in the aggregate, to the Share Purchase Price;
(B) the certificate evidencing to be delivered pursuant to Section 6.03;
(C) a counterpart to the Non-Competition Agreement attached as Exhibit B hereto (the “Non-Competition Agreement”), duly executed by Purchaser;
(D) a counterpart to the Transition Services Agreement attached as Exhibit C hereto (the “Transition Services Agreement”), duly executed by Purchaser; and
(E) a counterpart to the assignment and assumption agreement attached as Exhibit D hereto, pursuant to which Seller will assign to Purchaser or its designee all of Seller’s right, title and interest in the Assumed Contracts and Purchaser or its designee will assume all executory obligations accruing or arising thereunder from and after the Closing Date (the “Assignment and Assumption Agreement”), duly executed by Purchaser or its designee.
(iv) At the Closing, Seller shall deliver to Purchaser the following:
(A) the Subject Shares, free and clear of all Liens, other than Permitted Liens, and certificates representing the Subject Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed endorsed in blank, with all required stock transfer tax stamps affixed thereto;
(ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company blank in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) proper form for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit Dtransfer;
(B) evidence reasonably satisfactory to Purchaser of removal of all Liens, other than Permitted Liens, from the Subject Shares and the assets of the Companies;
(C) the certificate to be delivered pursuant to Section 6.02;
(D) duly signed resignations, effective upon the Closing, of the officers and directors of each of the Companies as set forth on Section 1.03(b) of the Seller Disclosure Letter including a general release of each such Company from any and all claims, liabilities and obligations related to events, acts, conduct or omissions on or prior to the Closing Date Payment Date;
(E) a counterpart of the Non-Competition Agreement duly executed by wire transfer Seller;
(F) a counterpart of immediately available funds the Transition Services Agreement duly executed by Seller;
(G) a counterpart to the account designated Assignment and Assumption Agreement duly executed by Seller.
(H) original corporate record books and stock record books and other books and records of each of the Seller on Annex ACompanies (including, without limitation, the records of any Business employees, contractors or consultants and any log-in and security information relating to Company state registrations); and
(CI) duly executed counterparts evidence reasonably satisfactory to each Purchaser of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf accomplishment of the Seller or Restructuring in accordance with the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer terms of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedulethis Agreement.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At least five (5) Business Days prior to the ClosingClosing (except as noted below), the Seller will deliverBorrower shall issue, deliver or cause to be delivered, delivered to BuyerInitial Lender the following:
(i) a stock certificate evidencing the SharesNote, free and clear of all restrictive and other legends (except as provided in the form of Note attached hereto as Exhibit A), duly endorsed executed by Borrower, to be held in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoescrow and released upon the Closing;
(ii) written letters a notice of resignationborrowing, effective substantially in the form attached hereto as Exhibit B, delivered by 10:00 a.m. (New York, New York time) (the “Notice of the Closing, from each of the members of the board of directors of the Acquired Companies;Borrowing”).
(iii) each a legal opinion of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)Borrower’s counsel, dated as of the Closing Date and signed substantially in the form attached hereto as Exhibit C, executed by an officer such counsel and addressed to Lenders, to be released upon the Closing;
(iv) a certificate of the CompanySecretary of Borrower, certifying that in the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) form attached hereto as Exhibit D, dated as of the Code Closing Date, to be held in escrow and proof reasonably satisfactory to Buyer that released upon the Company shall have provided notice Closing, certifying: (A) the resolutions adopted by the board of directors of Borrower (the “Board”) or a duly authorized committee thereof approving the borrowing of the Term Loan and approving the other transactions contemplated by this Agreement; (B) the current versions of the organizational documents and bylaws of Borrower; and (C) as to the IRS in accordance with the provisions signatures and authority of Treasury Regulations Section 1.897-2(h)(2)persons signing this Agreement and related documents on behalf of Borrower;
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from Chief Executive Officer, President or Chief Financial Officer of Borrower, in the secretary of state or similar Governmental Body form attached hereto as Exhibit E, dated as of the jurisdiction under Closing Date, to be held in escrow and released upon the applicable Laws in which each Closing, certifying to the fulfillment of the Acquired Companies is organizedconditions specified in Section 4.1(a), Section 4.1(b) and Section 4.1(d);
(vi) a certificate of the Secretary existence or an Assistant Secretary (or equivalent officer) good standing for Borrower from each of the Seller certifying that attached thereto are true jurisdictions of Borrower’s incorporation and complete copies Borrower’s principal place of all resolutions adopted by business, each as of a recent date;
(vii) a certificate of existence or good standing for the board of directors Bank from the jurisdiction of the Seller authorizing the execution, delivery and performance Bank’s formation as of this Agreement and the Transaction Documents to which the Seller is a party, 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 therebyrecent date; and
(viiviii) duly executed counterparts a transfer to each Initial Lender or its designee, in immediately available funds, of a reimbursement to Lender of all of Lender’s reasonable transactional expenses in excess of $5,000, up to a maximum aggregate amount of $15,000; provided, however, that the amounts payable hereunder may be paid through a net settlement of the Transaction Documents Term Loan amount to which the Seller is a party be transferred to Borrower pursuant to Section 1.1 and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementSection 1.9(b).
(b) At On or prior to the Closing, Initial Lender shall transfer to Borrower, in immediately available funds, an amount equal to the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate principal value of the Secretary or an Assistant Secretary Term Loan extended (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closingoption of Initial Lender, delivernet of any amounts due to Initial Lender pursuant to Section 1.9(a)), or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in accordance with written wire transfer instructions indicated in the form attached hereto as Exhibit D;
Notice of Borrowing delivered by Borrower to Initial Lender at least five (B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (25) Business Days after payment is made for payments prior to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Sources: Subordinated Loan Agreement (First Colebrook Bancorp, Inc.)
Closing Deliveries. Subject to the terms set forth herein:
(a) At On the ClosingClosing Date, Target shall deliver the Seller will deliverfollowing items, or cause all of which shall be in a form and substance reasonably acceptable to be delivered, to BuyerAcquiror:
(i) a stock A certificate evidencing executed on behalf of Target by its Chief Executive Officer certifying to the Shares, duly endorsed matters in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoSection 4.1(b);
(ii) written letters Certificates from the Secretary of resignation, effective as State of the Closing, from each State of the members of the board of directors of the Acquired CompaniesDelaware as to Target’s good standing;
(iii) each A certified copy from the Secretary of State of the deliverables contemplated by Section 2.5(a)State of Delaware of the current Certificate of Incorporation of Target;
(iv) certification from A certificate executed on behalf of Target by its Secretary certifying its bylaws and board resolutions approving and authorizing the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)transactions contemplated herein;
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws Such other documents as Acquiror’s counsel shall have reasonably requested, in which each of the Acquired Companies is organizedform and substance reasonably satisfactory to such counsel;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies The written consents of all resolutions adopted by third parties required to complete the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; andMerger;
(vii) duly executed counterparts to each The stock books and records and corporate minute books of Target;
(viii) The signed resignations of all directors and all officers of Target dated and effective as of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.Closing Date;
(bix) At Each of the Closing, the Company will, employees of Target who accepts employment with Acquiror shall have executed and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or Acquiror, which may be post-Closing but shall be pre-employment, an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true Employee Innovations and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Proprietary Rights Assignment Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in substantially the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(Cb) duly executed counterparts On the Closing Date, Acquiror and Merger Sub shall deliver the following items, as the case may be, all of which shall be in a form and substance reasonably acceptable to Target offers of employment to each of the Transaction Documents employees listed on Schedule 1.7(b).
(c) On the Closing Date, the Parties shall deliver the following items to the other Parties as follows, all of which Buyer is shall be in a partyform and substance reasonably acceptable to the receiving Party:
(i) Each of the Key Employees and the Acquiror shall have executed and delivered an Executive Employment Agreement in substantially the form attached hereto as Exhibit C;
(ii) payAcquiror and Vivato Networks Holdings, or cause to be paid, on behalf of Inc. shall have executed a License Agreement in substantially the Seller or form attached hereto as Exhibit D (the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date“License Agreement”), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(Biii) at Target, Predecessor and Acquiror shall have executed and delivered the Closing, Management Agreement in substantially the Estimated Company Indebtedness by wire transfer of immediately available funds in form attached hereto as Exhibit E (the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule“Management Agreement”).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Catcher Holdings, Inc)
Closing Deliveries. Subject to On the terms set forth herein:Closing Date,
(a) At the Closing, the Seller will deliver, or cause to be delivered, to BuyerTransferor shall:
(i) for each Property (other than the Ground Lease Parcel) execute and deliver to Transferee a stock certificate evidencing bargain and sale deed with covenant against grantor's acts conveying Transferor's interest in the SharesProperties free and clear of all liens, duly endorsed easements, encumbrances, restrictions and other exceptions, other than the Permitted Exceptions, in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe form attached hereto as Exhibit A (the "Deed");
(ii) written letters of resignationfor the Ground Lease Parcel, effective execute and deliver to Transferee an assignment (the "Ground Lease Assignment and Assumption") in the form attached hereto as of Exhibit A-1, which assigns the Closing, from each of lessee's interest in the members of leasehold estate created by the board of directors of the Acquired CompaniesGround Lease;
(iii) for each Property, execute and deliver to Transferee a bill of sale covering the deliverables contemplated by Section 2.5(a)Personal Property in the form attached ▇▇▇▇to as Exhibit B;
(iv) certification from for each Property, execute and deliver to Transferee an assignment (the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) "Assignment and 1.897-2(h), dated as Assumption of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1Leases") of all Leases and security deposits which shall be in recordable form and in the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)form attached hereto as Exhibit C;
(v) a good standing certificate (or its equivalent) for each Property, execute and deliver to Transferee an assignment (the "Assignment and Assumption of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officerContracts") of the Seller certifying that attached thereto are true all Contracts, Licenses and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the executionPermits, delivery General Intangibles, warranties and performance of this Agreement and the Transaction Documents to which the Seller is a partyguaranties affecting such Property, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(Bvi) deliver to Transferee the security deposits then held by Transferor, its agents or any Affiliate pursuant to the Leases, and to the extent that any security deposit made under a Lease is in the form of a letter of credit, deliver such assignments and other instruments as Transferee may reasonably require to transfer such letter of credit to Transferee or, if Transferee so requires, to Transferee's mortgage lender on the applicable Property (together with reasonably satisfactory confirmation from the issuer thereof that Transferee (or such lender) is the valid holder thereof);
(vii) execute and deliver to Transferee a nonforeign affidavit in the form attached hereto as Exhibit E;
(viii) execute and deliver to Transferee a letter addressed to each tenant, licensee or occupant under any Lease ("Tenant") advising the Tenant of the transfer of the Property and assignment of its Lease in the form attached hereto as Exhibit F;
(ix) execute and deliver to Transferee a letter addressed to each vendor under any Contract being assumed by Transferee hereunder advising the vendor of the transfer of the Property and assignment and assumption of its Contract in the form attached hereto as Exhibit F-1;
(x) deliver to Transferee the original executed estoppel certificates obtained by Transferor pursuant to Section 5.6;
(xi) execute and deliver to Transferee the Proration Agreement;
(xii) deliver to Transferee or Transferee's property manager signed originals or, if unavailable, copies, of all Leases;
(xiii) deliver to Transferee or Transferee's property manager signed originals or, if unavailable, copies, of all Contracts and Licenses and Permits being assigned to Transferee;
(xiv) deliver to Transferee a signed original of each Ground Lease, or, if unavailable, a copy thereof;
(xv) deliver to Transferee or Transferee's property manager for all Improvements copies of all warranties, guaranties, service manuals and other documentation in the possession or control of Transferor, its agents or any Affiliate pertaining to building systems and equipment;
(xvi) deliver to Transferee or Transferee's property manager for all Improvements all keys and combinations to locks that are in the possession or control of Transferor, its agents or any Affiliate;
(xvii) deliver to Transferee or Transferee's property manager for all Improvements copies of all plans and specifications that are in the possession or control of Transferor or any Affiliate;
(xviii) file the 1099-S Form required by the Internal Revenue Service and deliver a copy thereof to Transferee;
(xix) deliver to Title Insurer such customary affidavit or indemnity as is reasonably required for the Title Insurer to omit from its title report those exceptions required to be omitted in order to convey title to the Properties as required hereby;
(xx) deliver to Title Insurer such corporate resolutions or other appropriate documentation reasonably required by Title Insurer regarding the authorization of Transferor to transfer the Properties to Transferee and the authority and incumbency of the person or persons executing this Agreement;
(xxi) to the extent Transferor is obligated under the terms of this Agreement, deliver to Title Insurer such unconditional releases, satisfactions or other instruments as may be required by Law to discharge any mortgages or other security interests of record (other than the Existing Mortgages);
(xxii) deliver to Transferee the Transferor Representation and Warranty Update;
(xxiii) deliver to Transferee or Transferee's property manager (with Transferor having the right to retain copies thereof) all of the Books and Records;
(xxiv) execute and deliver to Transferee such documents as Transferee may reasonably require to evidence the assignment of the Systems;
(xxv) execute and deliver to Transferee an assignment and assumption of the Existing Unsecured Debt (the "Assignment and Assumption of Existing Debt") in form reasonably acceptable to Transferee and Transferor (it being intended that the holder of the Existing Unsecured Debt shall be a third party beneficiary to the Assignment and Assumption of Existing Debt and shall be entitled to proceed thereunder directly against Transferee) whereby Transferee will assume the Existing Unsecured Debt and will, immediately after such assumption, repay the Existing Unsecured Debt;
(xxvi) unless previously executed, execute and deliver to each member of Transferee, except Scott Rechler, a Transition Agreement (collectively, the "Transi▇▇▇▇ ▇▇▇▇▇▇▇▇▇s") in the form attached as Exhibit O;
(xxvii) intentionally omitted;
(xxviii) unless previously executed, execute and deliver to Scott Rechler the Employment Agreement Amendment (the "SR Amendment") ▇▇ ▇▇▇ ▇▇▇m attached as Exhibit Q;
(xxix) execute and deliver to Transferee the License Agreement (the "License Agreement") in the form attached as Exhibit R;
(xxx) execute and deliver to Transferee an agreement (the "Surrender Agreement") reasonably acceptable to Transferee and Transferor providing for the surrender by Transferor of the entire first floor portion of the space leased by ROP at 225 Broadhollow Road consisting of 16,931 rentable square feet, t▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ROP of all furniture, fixtures and equipment located in such surrendered premises and providing for the equitable adjustment of the terms of the lease for the remainder of the space so leased by ROP, but for no additional consideration other than the Option Modification Agreement;
(xxxi) execute and deliver to Transferee an agreement providing for the termination of ROP's option to acquire 593 Acorn in consideration of payment to ROP by Transferee at Closing of $872,000.00 (the "Acorn Option Termination Agreement") in the form attached as Exhibit T;
(xxxii) execute and deliver to Transferee an agreement providing for the extension of ROP's option on 225 Broadhollow Road (the "Option Modification Agreement") in the fo▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇it U;
(xxxiii) execute and deliver to Transferee an agreement providing for Transferee to have a right of first refusal with respect to certain parcels of vacant land (the "ROFR Agreement") in the form attached as Exhibit V;
(xxxiv) execute and deliver to Transferee the Stock Loan Assignment and Assumption Agreement (the "Stock Loan Agreement") in the form attached hereto as Exhibit W;
(xxxv) execute and deliver to Transferee an Artwork License Agreement (the "Artwork License Agreement") reasonably acceptable to Transferor and Transferee providing that any artwork belonging to any direct or indirect members of Transferee present in any property of Transferor or its affiliates after the Closing Date Payment shall, in return for Transferor's payment of $1.00 to Transferee, remain in place until August 15, 2004 and shall be removed by wire transfer Transferee within 60 days of immediately available funds such date, and that until the removal of such artwork, Transferor shall be responsible for maintaining, insuring and securing such artwork;
(xxxvi) execute and deliver to Transferee an environmental indemnity with respect to 32 Windsor Road in the account designated by the Seller on Annex Aform attached hereto as Exhibit P; and
(Cxxxvii) duly executed counterparts execute and deliver to each Transferee an agreement providing for the termination of ROP's options to acquire Gateway, Huntington and Willets (the "Option Termination Agreements") in the same form as the Acorn Option Termination Agreement, except that the aggregate consideration payable to Transferor for all such terminations shall be $100,000.00.
(b) Transferee shall:
(i) deliver to Transferor an instrument reasonably satisfactory to Transferor evidencing and confirming the surrender of the Transaction Documents to which Buyer is a partyPartnership Interests;
(ii) payexecute and deliver to Transferor the Ground Lease Assignment and Assumption;
(iii) execute and deliver to Transferor the Assignment and Assumption of Leases;
(iv) execute and deliver to Transferor the Proration Agreement;
(v) execute and deliver to Transferor the Assignment and Assumption of Contracts;
(vi) execute and deliver to Transferor the Assignment and Assumption of Existing Debt;
(vii) deliver to Transferor the Transferee Representation and Warranty Update;
(viii) unless previously executed, or cause the Transition Agreements to be paid, on behalf executed and delivered by its respective member of the Seller or the Acquired Companies, the following:Transferee;
(Aix) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; andomitted;
(Bx) at unless previously executed, cause Scott Rechler to execute and deliver to Transferor the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.SR Amendment;
Appears in 1 contract
Sources: Redemption Agreement (Reckson Operating Partnership Lp)
Closing Deliveries. Subject to the terms set forth herein:
(a) At To effectuate the Closing, Seller shall deliver to the Seller will deliver, or cause to be delivered, to BuyerEscrow Agent the following:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer Deed duly executed in blank, with all required stock transfer tax stamps affixed theretoby Seller;
(ii) written letters the Assignment of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired CompaniesLeases duly executed by Seller;
(iii) each a ▇▇▇▇ of Sale in the deliverables contemplated form attached hereto as EXHIBIT E pursuant to which Seller will convey to Buyer all of Seller’s right, title and interest in and to the Personal Property duly executed by Section 2.5(a)Seller;
(iv) certification from signed counterparts of the Company General Assignment in accordance with Treasury Regulations Sections 1.1445-2(c)(3substantially the form attached hereto as EXHIBIT G pursuant to which Seller will assign to Buyer all of the Intangible Property, all Guarantees and all Permits (the "General Assignment") duly executed by Seller;
(v) an assignment to Buyer of all of Seller's right, title and 1.897-2(h)interest in any reciprocal easement agreements, dated operating agreements and other similar agreements (the "REA Agreements") in substantially the form attached hereto as EXHIBIT H (the "REA Assignment") duly executed by Seller;
(vi) an assignment to Buyer of all of Seller's right, title and interest in that certain Supplemental Agreement by and between Seller and Leawood Exchange, LLC, a Kansas limited liability company, date August 7, 2009, in substantially the form attached hereto as EXHIBIT N (the "Supplemental Agreement Assignment") duly executed by Seller;
(vii) a certificate executed by Seller in the form of EXHIBIT I attached hereto, certifying the truth, completeness and accuracy of the representations and warranties of Seller, as of the Closing Date duly executed by Seller;
(viii) a certificate regarding Seller's non-foreign status duly executed by Seller;
(ix) a completed 1099-S request for taxpayer identification number and signed certification and acknowledgment duly executed by an officer Seller;
(x) originals of the Company, certifying that Tenant Estoppel Certificates (as hereinafter defined) and the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2REA Estoppels (as hereinafter defined);
(vxi) a good standing certificate (or its equivalent) for each originals of the Acquired Companies from documents required by Lender (as hereinafter defined) or Buyer in connection with the secretary of state or similar Governmental Body defeasance of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedLeawood Loan (as hereinafter defined);
(vixii) a certificate the Owner's Title Affidavit duly executed by Seller;
(xiii) notices to all Tenants in substantially the form of the Secretary or an Assistant Secretary EXHIBIT F attached hereto duly executed by Seller;
(or equivalent officerxiv) resolutions of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance sale of the Property pursuant to this Agreement and the Transaction Documents to which the Seller is a party, and the consummation authority of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all officer executing the resolutions adopted in connection with the transactions contemplated hereby and therebyclosing documents on behalf of Seller duly executed by Seller;
(xv) a Closing Statement duly executed by Seller; and
(viixvi) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary required to consummate and make effective the transactions transaction contemplated by this Agreement.
(b) At To effectuate the Closing, Buyer shall deliver to Escrow Agent the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyerfollowing:
(i) a certificate the Assignment of Leases duly executed by Buyer;
(ii) the Secretary or an Assistant Secretary General Assignment duly executed by Buyer;
(or equivalent officeriii) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted REA Assignment duly executed by Buyer;
(iv) the board of directors of Supplemental Agreement Assignment duly executed by Buyer;
(v) the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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 therebyClosing Statement duly executed by Buyer; and
(iivi) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary required to consummate and make effective the transactions transaction contemplated by this Agreement.
(c) Buyer willUnless otherwise provided herein, all documents and funds necessary for Closing shall be deposited in escrow at least one (1) business day prior to the Closing Date. At Closing:
(i) at the Closing, deliver, or cause Escrow Agent shall deliver the Deed to be delivered, to Buyer by filing the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) Deed for record in the form attached hereto as Exhibit D;
(B) public records for the Closing Date Payment by wire transfer of immediately available funds to jurisdiction in which the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer Property is a partylocated;
(ii) pay, or cause the Escrow Agent shall pay to be paid, on behalf of Seller the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date Purchase Price less any credits to which Buyer is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment entitled as reflected on the Closing Date for Statement, and disburse the payments which have ▇▇▇▇▇▇▇ Deposit to be made on such date and within two Seller;
(2iii) Business Days after payment is made for payments to be made after the Closing DateTitle Company shall issue the Title Policy; and
(Biv) the Escrow Agent shall charge Seller and Buyer for the closing costs as set forth in Section 5 above.
(d) Seller shall deliver exclusive possession of the Property to Buyer at the Closing, except for the Estimated Company Indebtedness by wire transfer rights of immediately available funds in any parties under the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff SchedulePermitted Exceptions.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will shall deliver, or cause to be delivered, to BuyerBuyer the following:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer an Assignment and Conveyance Agreement duly executed by Seller, substantially in blankthe form attached hereto as Exhibit A, with whereby Seller shall convey and transfer to Buyer all required stock transfer tax stamps affixed theretoof Seller’s right, title and interests in and to the Company Interests, subject to the terms contained herein and therein;
(ii) written letters of resignationan Assignment and Assumption Agreement duly executed by Seller, effective substantially in the form attached hereto as of Exhibit B, which sets forth the Closingterms and conditions under which Seller shall assign and Buyer shall accept and assume the Assumed Liabilities, from each of the members of the board of directors of the Acquired Companiessubject to Permitted Encumbrances;
(iii) an SPA and R&W Policy Assignment Agreement duly executed by Seller, substantially in the form attached hereto as Exhibit C, which sets forth the terms and conditions under which Seller shall assign and Buyer shall accept Seller’s rights under each of the deliverables contemplated by Section 2.5(a)Purchase Agreements and Seller’s rights and obligations under the R&W Policy with respect to each of the Purchase Agreements;
(iv) certification a letter agreement duly executed by Seller relating to certain delivery requirements under each Company’s Governing Instruments, substantially in the form attached hereto as Exhibit D1, Exhibit D2 or Exhibit D3, as applicable;
(v) a properly executed statement from Seller (or the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(happropriate parent Affiliate, if Seller is disregarded as an entity separate from its parent for federal income tax purposes on the Closing Date), dated as of the Closing Date and signed by an officer of Date, in the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof form reasonably satisfactory acceptable to Buyer that meets the Company shall have provided notice to the IRS in accordance with the provisions requirements of Treasury Regulations Section 1.8971.1445-2(h)(2);
(v2(b)(2) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction promulgated under the applicable Laws in which each of the Acquired Companies is organizedCode;
(vi) a certificate of duly executed by the Secretary or an Assistant Secretary (or equivalent officer) of Seller, dated as of the Seller certifying that attached thereto are true and complete copies Closing Date, in customary form, attesting to the resolutions of all resolutions adopted by the board of managers, board of directors or similar governing body of the Seller authorizing the execution, execution and delivery and performance of this Agreement and the Transaction Operative Documents to which the Seller is a party, party and the consummation of the transactions contemplated hereby and thereby, and certifying that all such resolutions are in full force were duly adopted and effect and are all have not been rescinded or amended as of the resolutions adopted in connection with the transactions contemplated hereby and therebyClosing Date; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents instruments and agreements as the Parties may mutually agree are necessary or instruments as Buyer reasonably requests and are reasonably necessary appropriate to consummate and make effective the transactions contemplated by in this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, Buyer shall deliver, or cause to be delivered delivered, to BuyerSeller the following:
(i) payment of the Purchase Price in accordance with Section 2.2;
(ii) an Assignment and Conveyance Agreement duly executed by Buyer, substantially in the form attached hereto as Exhibit A whereby Seller shall convey and transfer to Buyer all of Seller’s right, title and interests in and to the Company Interests, subject to the terms contained herein and therein;
(iii) an Assignment and Assumption Agreement duly executed by Buyer, substantially in the form attached hereto as Exhibit B, which sets forth the terms and conditions under which Seller shall assign and Buyer shall accept and assume the Assumed Liabilities, subject to Permitted Encumbrances;
(iv) an SPA and R&W Policy Assignment Agreement duly executed by Buyer, substantially in the form attached hereto as Exhibit C, which sets forth the terms and conditions under which Seller shall assign and Buyer shall accept Seller’s rights under each of the Purchase Agreements and Seller’s rights and obligations under the R&W Policy with respect to each of the Purchase Agreements;
(v) a letter agreement duly executed by Buyer relating to certain delivery requirements under each Company’s Governing Instruments, substantially in the form attached hereto as Exhibit D1, Exhibit D2 or Exhibit D3, as applicable;
(vi) a certificate of duly executed by the Secretary or an Assistant Secretary (or equivalent officer) of Buyer, dated as of the Company certifying that attached thereto are true Closing Date, in customary form, attesting to the resolutions of (i) the Conflicts Committee approving the transactions contemplated by this Agreement and complete copies of all resolutions adopted by the board of directors of Operative Documents and (ii) the Company Buyer Parent GP Board authorizing the execution, execution and delivery and performance of this Agreement and the Transaction Operative Documents to which the Company Buyer is a party, party and the consummation of the transactions contemplated hereby and thereby, and certifying that all such resolutions are in full force were duly adopted and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby; and
(ii) duly executed counterparts to each have not been rescinded or amended as of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(Bvii) at such other instruments and agreements as the Closing, Parties may mutually agree are necessary or appropriate to consummate the Estimated Company Indebtedness by wire transfer of immediately available funds transactions contemplated in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedulethis Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Midstream Partners, LP)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will Sellers shall deliver, or shall cause to be delivered (unless previously delivered), the following to the Buyer, in each case in form and substance reasonably acceptable to the Buyer:
(i) a stock certificate evidencing the original share certificates representing the Shares and duly executed copies of instruments of transfer and any other documents necessary to transfer to the Buyer good and valid title to the Shares, duly endorsed in blank or accompanied by stock powers or free and clear of all Encumbrances (other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothan Permitted Encumbrances);
(ii) a certificate signed by an officer of the Company, certifying as to the resolutions of the board of directors of the Company approving this Agreement and the transactions contemplated hereby;
(iii) a certificate signed by an officer of each non-individual Seller, certifying as to the resolutions of the board of directors or trustees of such Seller approving this Agreement and the transactions contemplated hereby;
(iv) a copy of the certificate of incorporation of the Company and a copy of the notice of articles of the Company, each together with all amendments thereto and certified by an officer of the Company;
(v) the original minute books of the Companies to the extent not in the possession of the Companies at the Closing;
(vi) certificates of good standing (or in the case of Excell USA, a Texas franchise tax account status report) with respect to each of the corporate Sellers and the Companies, in each case issued in their respective jurisdictions of existence;
(vii) written letters of resignationresignations, effective as of the Closing, from each Person who serves as a director or officer of the members Companies as of immediately prior to the board of directors of the Acquired CompaniesClosing;
(iiiviii) each any and all consents or waivers required from third parties relating to this Agreement or the other Transaction Documents or any of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, and the consummation of the other transactions contemplated hereby and or 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; and
(vii) duly executed counterparts including, but not limited to, any consents related to each any “change of control” of the Transaction Documents Companies, provided that, if and to which the Seller is a party extent that any such consents or waivers are not obtained or delivered prior to Closing and such other documents or instruments as the Buyer reasonably requests and are reasonably necessary to consummate and make effective consummates the transactions contemplated by this Agreement notwithstanding same, the Buyer shall be deemed to have waived the requirement for such consents or waivers and the Sellers shall be forever released and discharged from the obligation to obtain or deliver such consents or waivers, provided that this shall not limit any continuing obligations of the Sellers under Section 6.9;
(ix) the Escrow Agreement, executed by the Sellers’ Representative;
(x) evidence of the termination of any shareholder agreements in respect of the Companies;
(xi) a general release in a form acceptable to the parties thereto (the “General Release”) executed by the Sellers in favour of the Company; and
(xii) a certificate from each Seller stating that such Seller is not a non-resident of Canada within the meaning of the Tax Act.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, Buyer shall deliver, or cause to be delivered (unless previously delivered), the following to Buyerthe Sellers’ Representative, in each case in form and substance reasonably acceptable to the Sellers:
(i) a certificate signed by an officer of the Secretary or an Assistant Secretary (or equivalent officer) Buyer, certifying as to the resolutions of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of Buyer approving this Agreement and the Transaction Documents to which transactions contemplated hereby;
(ii) the Escrow Agreement, executed by the Buyer and the Escrow Agent;
(iii) the General Release, executed by the Buyer, the Company is a party, and the consummation Excell USA in favour 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 therebySellers; and
(iiiv) duly executed counterparts to each a certificate of good standing issued by the Transaction Documents to which British Columbia Registrar of Companies, certifying that the Company Buyer is in active status or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreementgood standing in British Columbia.
(c) Buyer willAt the Closing, the following shall occur:
(i) at the Closing, deliverBuyer shall purchase the Shares by paying, or cause causing to be deliveredpaid, (x) to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) Sellers the Closing Date Payment Net Purchase Price less the Escrow Amount by wire transfer of immediately available funds to the Sellers’ legal counsel, in trust for the Sellers, to the bank account designated by the Seller on Annex A; and
(C) duly executed counterparts Sellers’ legal counsel prior to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing and (or if a later due date is applicable with regard y) to the relevant Company Transaction Expense, at such later date), Escrow Agent the Company Transaction Expenses Escrow Amount by wire transfer of immediately available funds funds;
(ii) the Buyer shall make each other payment as set forth in Section 2.3;
(iii) the amounts Sellers shall sell, assign, transfer, convey and deliver, and effective at Closing hereby does sell, assign, transfer, convey and deliver, the Shares owned by the Sellers to the payees identified on Buyer, and the books and records of Companies shall be updated to reflect such transfer;
(iv) the Company Transaction Expense Schedule. and the Sellers shall deliver to the Buyer such other supporting documents and certificates as the Buyer may reasonably request;
(v) the Buyer shall provide evidence of payment on deliver to the Closing Date for Sellers’ Representative such other supporting documents and certificates as the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing DateSellers may reasonably request; and
(Bvi) at the ClosingBuyer shall deliver, or cause to be delivered, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and Escrow Amount to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleEscrow Agent.
Appears in 1 contract
Closing Deliveries. Subject UCFI shall have delivered to CryoLife each of the terms set forth following, together with any additional items which CryoLife may reasonably request to effect the transactions contemplated herein:
(a) At possession of the Closing, the Seller will deliver, or cause to be delivered, to Buyer:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoAssets;
(iib) written letters a Bill of resignationSale in the form of Exhibit ▇.▇(b) attached hereto, effective as the Assignment and Assumption Agreement, the Assignment and Assumption of the ClosingSublease, from each and such additional instruments of the members of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated sale, transfer, conveyance, and assignment duly executed by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated UCFI as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory as counsel to Buyer that the Company CryoLife shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)deem necessary or appropriate;
(vc) a good standing certificate (or its equivalent) for each certified copy of the Acquired Companies from corporate resolutions of UCFI and the secretary Members of state or similar Governmental Body of UCFI authorizing the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true transactions contemplated hereby and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance by UCFI of this Agreement and the Transaction Documents other agreements and instruments contemplated hereby, together with an incumbency certificate with respect to which the Seller is a party, and the consummation officers 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other UCFI executing documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.on behalf of UCFI;
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(id) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) President of UCFI and a certificate of the Company President of each Member certifying that attached thereto are true as to the matters set forth in Sections 7.1 and complete copies 7.2 hereof and as to the satisfaction of all resolutions adopted other conditions set forth in this Article 7;
(e) the Noncompetition Agreements referred to in Section 3.4 hereof duly executed by UCFI and each Member;
(f) a Closing Trade Payables and Accrued Expenses List pursuant to Section 4.10(b);
(g) an opinion of counsel to UCFI substantially in the board form of directors of Exhibit 7.4(g);
(h) written consents from all parties to the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents Sublease whose consent to which the Company is a party, and the consummation of the transactions contemplated hereby is required (subject to the provisions of Section 3.2);
(i) the Procurement Agreements referred to in Section 3.12 duly executed by ROBI and thereby, and that all such resolutions are MTS;
(j) the Employee Leasing Agreement referred to in full force and effect and are all Section 3.1 duly executed by QV;
(k) the resolutions adopted Distribution Agreement referred to in connection with Section 3.14 duly executed by UCFI;
(l) the transactions contemplated hereby and therebyTransitional Agreements referenced in Section 3.16 duly executed by ROBI; and
(iim) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably agreements contemplated hereby and/or necessary or appropriate to consummate and make effective the transactions contemplated by this Agreementhereby.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Closing Deliveries. Subject The Seller Parties shall have executed (where applicable) and delivered to Purchaser each of the terms set forth following, together with any additional items that Purchaser may reasonably request to effect the transactions contemplated herein:
(a) At the ClosingTransaction Documents, including, without limitation, a ▇▇▇▇ of Sale, in substantially the same form as attached hereto as Exhibit 7.4(a)(i), an Assignment and Assumption Agreement, in substantially the same form as attached hereto as Exhibit 7.4(a)(ii), and such additional instruments of sale, transfer, conveyance, and assignment duly executed by the Seller will deliver, or cause to be delivered, to Buyer:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;
(ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed as reasonably requested by an officer of Purchaser to consummate the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)transactions described herein;
(vb) a good standing certificate (or its equivalent) for each certified copy of the Acquired Companies from the secretary of state or similar Governmental Body corporate resolutions of the jurisdiction under the applicable Laws in which each Board of Directors of Seller and of the Acquired Companies is organized;
(vi) a certificate of Shareholders authorizing the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true transactions contemplated hereby and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance by Seller of this Agreement and the Transaction Documents and an incumbency certificate with respect to which officers of the Seller is Parties executing documents or instruments on behalf of Seller Parties;
(c) a partycertificate of a duly authorized officer of each of the Seller Parties certifying as to the matters set forth in Sections 7.1 and 7.2 hereof;
(d) the Holdback Escrow Agreement duly executed by Seller;
(e) the Transition Services Agreement and Noncompetition/Non-Solicitation Agreement, and each duly executed by the consummation Seller Parties, as applicable;
(f) an opinion of counsel to Seller Parties as to due authorization of the transactions contemplated hereby hereby;
(g) releases and therebytermination statements in respect of all Encumbrance with respect to the Purchased Assets other than Permitted Encumbrances, in form and that all such resolutions are in full force and effect and are all substance satisfactory to Purchaser;
(h) a good standing certificate issued by the resolutions adopted in connection with Secretary of State for the transactions contemplated hereby and therebyState of California for Seller; and
(viii) a closing statement, duly executed counterparts to by each of the Transaction Documents to which Seller Parties, setting forth in reasonable detail the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions financial transaction contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Closing Deliveries. Subject At the Closing, subject to and on the terms and conditions set forth hereinin this Agreement:
(a) At the Closing, the Seller will deliverParties (or the Sellers’ Representative, or cause on behalf of the Seller Parties) shall have delivered to be delivered, to Buyerthe Purchaser:
(i) a assignments of membership interests or stock certificate evidencing or share certificates representing the SharesPurchased Interests owned by each Selling Holding Company, duly endorsed in blank form for transfer or accompanied by appropriate membership interests or stock or share powers or other instruments of transfer duly executed in blank, blank together with all required stock transfer tax stamps affixed theretothe minute books of each Target Group Member;
(ii) written letters the resignation in writing from each manager, director and officer of resignation, each Target Group Member effective as of at the Closing, from each of the members of the board of directors of the Acquired CompaniesEffective Time;
(iii) the restrictive covenant agreements by each of the deliverables contemplated by Section 2.5(a)Seller Party;
(iv) certification from any other Ancillary Agreements, duly executed by the Company Seller Parties, Target Group Members, or any of their Affiliates who are a party thereto;
(v) copies of all consents required to be obtained by Seller Parties or the Target Group Members in accordance connection with Treasury Regulations Sections 1.1445-2(c)(3the Transaction;
(vi) customary payoff letters and 1.897-2(hevidence of the release of all Liens securing any assets of the Target Group Members (the “Payoff Statements”);
(vii) invoices issued by each legal counsel, investment bank, broker or advisor of Seller Parties or the Target Group Members entitled to fees or expenses which constitute Transaction Expenses, which invoices shall set forth (A) the amount required to pay in full all Transaction Expenses owned to such Person on the Closing Date, (B) the wire transfer instructions for the payment of such Transaction Expenses to such Person, and (C) the termination of all further obligations owing by the Target Group Members to such Person (“Transaction Expense Invoices”);
(viii) a secretary’s certificate, dated as of the Closing Date and signed executed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body each Selling Holding Company, certifying: (i) copies of the jurisdiction under the applicable Laws in which each Organizational Documents of the Acquired Selling Holdings Companies is organized;
and Target Group Members, (viii) the incumbency and specimen signature of each manager or officer of such Selling Holding Company executing this Agreement or any other Ancillary Agreements on such Selling Holding Company’s behalf; (iii) a certificate copy of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the each Selling Holding Company’s execution, delivery and performance of this Agreement and the Transaction Documents Ancillary Agreements to which the Seller it is a party, ; and the consummation of the transactions contemplated hereby and thereby, and (iv) that all such resolutions are in full force and effect and are all of the resolutions adopted in connection with the transactions Transaction;
(ix) evidence reasonably satisfactory to the Purchaser that all actions required to be taken by the Seller Parties to effect the Pre-Closing Reorganization as contemplated hereby herein shall have been completed;
(x) a certificate of good standing, status, compliance or equivalent with respect to each Selling Holding Company and therebyTarget Group Member issued by the appropriate government officials of their respective jurisdictions of incorporation or organization, as the case may be, and each other jurisdiction in which each Target Group Member is qualified to do business, as of a date not more than fifteen days prior to the Closing Date;
(xi) the Personal Goodwill Purchase Agreements (the “Personal Goodwill Agreement”), duly executed by each of ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
(xii) termination and assignment agreement for that certain engagement agreement between the applicable Target Group and ▇▇▇▇▇▇▇▇▇▇▇ Partners LLC, executed by the applicable Target Group and ▇▇▇▇▇▇▇▇▇▇▇ Partners LLC;
(xiii) an affidavit of non-foreign status of the Selling Holding Companies, in form and substance reasonably acceptable to the Purchaser, which complies with Section 1445 of the Code;
(xiv) a letter of credit in favor of Parsec in the amount of $10,000,000 in connection with the general liability and automobile/vehicle insurance obligations (the “Insurance LC”);
(xv) a letter of credit in favor of Parsec in the amount of $3,000,000 in connection with the health coverage obligations (the “Health LC”); and
(viixvi) duly executed counterparts to each without limitation by the specific enumeration of the Transaction Documents to which the Seller is a party and such foregoing, all other documents or instruments as Buyer reasonably requests and are reasonably necessary required by the Purchaser to consummate and make effective effect the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be Purchaser shall have delivered to Buyer:the Sellers Parties and/or Sellers’ Representative (as applicable):
(i) any other Ancillary Agreements, duly executed by the Purchaser and its Affiliates who are a certificate party thereto;
(ii) the Personal Goodwill Agreements, each duly executed by the Purchaser;
(iii) a secretary’s or officer’s certificate, dated as of the Secretary Closing Date and executed by the secretary or an Assistant Secretary other authorized officer of each Purchaser, certifying: (or equivalent officeri) the incumbency and specimen signature of each officer of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by Purchaser executing this Agreement or any other Ancillary Agreements on the board of directors Purchaser’s behalf; (ii) a copy of the Company resolutions authorizing the Purchaser’s execution, delivery and performance of this Agreement and the Transaction Documents Ancillary Agreements to which the Company it is a party, ; and the consummation of the transactions contemplated hereby and thereby, and (iii) that all such resolutions are in full force and effect and are all of the resolutions adopted in connection with the transactions contemplated hereby and therebyTransaction; and
(iiiv) duly executed counterparts a good standing certificate with respect to each the US Purchaser certified by the Secretary of State of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence State of the purchase by Buyer Purchaser’s incorporation or organization, as the case may be, as of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds a date not more than fifteen days prior to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Sources: Equity Purchase Agreement (Universal Logistics Holdings, Inc.)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will deliver, Company shall deliver or cause to be delivered, delivered to Buyereach Purchaser the following:
(i) a stock certificate evidencing representing the Sharesnumber of shares of Series B Preferred Stock to be purchased by each such Purchaser at the Closing, duly endorsed registered in blank or accompanied by stock powers or other instruments the name of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretosuch Purchaser;
(ii) written letters a certificate representing the number of resignation, effective as shares of Series A-1 Preferred Stock to be issued to each such Purchaser at the Closing, from each registered in the name of the members of the board of directors of the Acquired Companiessuch Purchaser;
(iii) each the legal opinion of Company Counsel, in form and substance reasonably satisfactory to the Purchasers, executed by such counsel, the legal opinion of the deliverables contemplated General Counsel of the Company, in form and substance reasonably satisfactory to the Purchasers, executed by Section 2.5(a)such counsel, and the legal opinion of Lerman Senter PLLC, in form and substance reasonably satisfactory to the Purchasers, executed by such counsel;
(iv) certification from evidence that the Series B Certificate of Designations has been filed with and accepted by the Secretary of State of the State of Delaware;
(v) evidence that the Series A-1 Certificate of Designations has been filed with and accepted by the Secretary of State of the State of Delaware;
(vi) the Investor Rights Agreement, duly executed by the Company and all holders of Series B Preferred Stock (other than the Purchasers);
(vii) the Proxy Statement, in accordance with Treasury Regulations Sections 1.1445-2(c)(3form and substance reasonably satisfactory to the Purchasers;
(viii) and 1.897-2(h), a certificate dated as of the Closing Date and signed by an officer the Chief Executive Officer or Chief Financial Officer of the Company, Company certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice as to the IRS in accordance with the provisions fulfillment of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws conditions set forth in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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 therebySection 5.1; and
(viiix) duly executed counterparts any other document applicable to each of the Transaction Documents Closing reasonably requested by the Purchasers at least five (5) Business Days prior to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementClosing Date.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, each Purchaser shall deliver or cause to be delivered to Buyer:
the Company (i) a certificate the percentage of the Secretary or an Assistant Secretary (or equivalent officer) of Purchase Price indicated below such Purchaser’s name on the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance signature page of this Agreement under the heading “Applicable Percentage,” in U.S. Dollars and the Transaction Documents in immediately available funds, by wire transfer to which an account designated in writing by the Company is a party, for such purpose 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; and
(ii) duly executed counterparts to each the certificates evidencing the shares of such Purchaser’s Series A Preferred Stock (or affidavits of loss, as applicable) in exchange for the Transaction Documents to which certificate(s) evidencing the Company or any Company Subsidiary is Gores Series A-1 Preferred Shares set forth opposite the name of such Purchaser on Schedule 2.1(a); provided, that the surrender of such certificates by such Purchaser shall not be a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, precondition to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedulecancellation thereof.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will deliver, deliver or cause to be delivered, delivered to Buyerthe Purchaser:
(i) a stock certificate evidencing certificates representing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blankblank in form customary for transfer, with all required appropriate stock transfer tax stamps affixed theretoaffixed, to the extent applicable;
(ii) written letters the transition services agreement substantially in the form of resignation, effective as of Exhibit A executed by the Closing, from each of Parent (the members of the board of directors of the Acquired Companies“Transition Services Agreement”);
(iii) each the indirect staffing agreement substantially in the form of Exhibit C executed by an Affiliate of the deliverables contemplated by Section 2.5(aParent (the “Indirect Staffing Agreement”);
(iv) certification from the Company a certificate in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)customary form, dated as of the Closing Date and signed Date, executed by an officer Seller confirming the satisfaction of the Companyconditions specified in Sections 6.1(a), certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1(b) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2(e);
(v) a good standing certificate (or its equivalent) for each resignations effective as of the Closing Date of each director and corporate officer of each Acquired Companies from Company as the secretary of state or similar Governmental Body of Purchaser may have requested in writing at least five (5) Business Days prior to the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedClosing Date;
(vi) a receipt for the Initial Purchase Price in customary form;
(vii) joint release instruction in a form acceptable to Escrow Agent executed by the Seller for delivery to the Escrow Agent in accordance with the Escrow Agreement, directing the Escrow Agent to release the Escrow Funds (as defined in the Escrow Agreement) to the Seller as partial payment of the Initial Purchase Price (the “Escrow Release”);
(viii) a certificate of good standing (or equivalent) of each Acquired Company certified by the Secretary or an Assistant Secretary of State (or equivalent officerequivalent) of the jurisdiction of organization of such Acquired Company and each other jurisdiction where such Authorized Company is authorized to do business, each issued not more than five (5) Business Days prior to the Closing Date;
(ix) evidence of changes of signatories, with effect as of immediately following the Closing, with respect to the bank account of Volt Canada identified in Section 2.6(a)(ix) of the Seller certifying Disclosure Schedule, provided that attached thereto are true and complete copies of all resolutions adopted by the board of directors Purchaser has provided written notice of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, and the consummation identity 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 therebynew signatories to Seller at least five (5) Business days prior to Closing; and
(viix) duly the definitive documentation evidencing the Reorganization executed counterparts by the parties thereto (the “Reorganization Documentation”); provided that Seller shall be permitted to each of redact information in the Transaction Documents to which the Seller Reorganization Documentation that is a party and such other documents prohibited from being disclosed by any contractual, legal or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreementfiduciary obligation.
(b) At the Closing, the Company will, and the Seller Purchaser will cause the Company and its Subsidiaries to, deliver, deliver or cause to be delivered to Buyerthe Seller:
(i) a certificate the Initial Purchase Price (as adjusted pursuant to Section 2.3) less the amount of the Secretary or an Assistant Secretary Escrow Funds (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) defined in the form attached hereto as Exhibit D;
(B) the Closing Date Payment Escrow Agreement), by wire transfer of immediately available funds to the an account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within least two (2) Business Days after payment is made for payments prior to be made after the Closing Date by Seller;
(ii) the Transition Services Agreement executed by the Purchaser;
(iii) the Indirect Staffing Agreement executed by the Purchaser;
(iv) a certificate in customary form, dated as of the Closing Date, executed by the Purchaser confirming the satisfaction of the conditions specified in Sections 6.2(a) and (b); and
(Bv) at the ClosingEscrow Release, executed by the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff SchedulePurchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement (Volt Information Sciences, Inc.)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller and the Company, as applicable, will deliver, deliver or cause to be delivered, delivered to Buyerthe Buyer the following items:
(i) a stock certificate original certificates evidencing all of the SharesStock, duly endorsed in blank or accompanied by together with stock powers or other instruments of transfer duly executed and assignments with respect thereto separate from such certificates signed by the Seller in blank, with all required stock transfer tax stamps affixed theretoa form reasonably satisfactory to the Buyer;
(ii) written letters of resignation, effective as a certificate signed by an officer of the ClosingCompany and the Seller, from as applicable, to the effect that each of the members of the board of directors of the Acquired Companiesconditions set forth in Sections 6.1(a) and 6.1(b) have been satisfied in all respects;
(iii) each a certificate of the deliverables Seller certifying that the transactions contemplated by hereby are exempt from withholding under Section 2.5(a)1445 of the Code;
(iv) certification from resignations effective as of the Closing of the officers and directors of the Company identified by the Buyer to the Seller in accordance with Treasury Regulations Sections 1.1445-2(c)(3writing no less than ten (10) Business Days prior to the Closing;
(v) copies of the certificate of good standing of the Seller and 1.897-2(hthe Company issued on or within ten (10) days prior to the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of each such Party’s organization;
(vi) copies of the certificate of incorporation (or formation) of the Seller and the Company certified on or within ten (10) days prior to the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of each such Party’s incorporation (or formation);
(vii) a certificate of the secretary or an assistant secretary of the Seller, dated as of the Closing Date Date, in form and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof substance reasonably satisfactory to Buyer that the Company shall have provided notice to Buyer, including: (i) the IRS in accordance with the provisions resolutions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors or other authorizing body of the Seller authorizing the execution, delivery delivery, and performance of this Agreement and the Transaction Documents to which transactions contemplated hereby; and (ii) an incumbency certificate and signatures of the officers of the Seller is executing this Agreement or any other agreement contemplated by this Agreement;
(viii) a partycertificate of the secretary or an assistant secretary of the Company, dated as of the Closing Date, in form and substance reasonably satisfactory to the consummation Buyer, including: (i) a representation that there have been no amendments to the certificate of incorporation (or formation) of the Company since the date such document was obtained pursuant to clause (vi) above; (ii) the bylaws (or other governing documents) of the Company; and (iii) any resolutions of the board of directors or other authorizing body of the Company relating to this Agreement and 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 therebyhereby; and
(viiix) duly executed counterparts to each copies of the Transaction Documents to which consents set forth on Section 2.5(a)(ix) of the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementDisclosure Schedule.
(b) At the Closing, the Company will, and the Seller Buyer will cause the Company and its Subsidiaries to, deliver, deliver or cause to be delivered to Buyerthe Seller or other designated Person the following items:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment , cash by wire transfer of immediately available funds to the an account or accounts designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) in writing at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within least two (2) Business Days after payment is made for payments prior to be made after the Closing, in an amount equal to the Estimated Payment;
(ii) a certificate of the secretary or an assistant secretary of the Buyer, dated as of the Closing Date, in form and substance reasonably satisfactory to the Seller, including: (i) the resolutions of the board of directors or other authorizing body (or a duly authorized committee thereof) of the Buyer authorizing the execution, delivery, and performance of this Agreement and the transactions contemplated hereby; and (ii) an incumbency certificate and signatures of the officers of the Buyer executing this Agreement or any other agreement contemplated by this Agreement; and
(Biii) at a certificate signed by an officer of the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and Buyer to the lenders effect that each of the conditions specified in Sections 6.2(a) and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule6.2(b) have been satisfied in all respects.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At On or prior to the ClosingClosing Date, the Seller will deliverCompany shall issue, deliver or cause to be delivered, delivered to Buyer:the Purchaser the following (the “Company Deliverables”):
(i) a stock certificate evidencing the Sharesthis Agreement, duly endorsed in blank or accompanied executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe Company;
(ii) written letters one or more certificates (as requested by Purchaser) evidencing the Initial Shares and, if applicable, the Option Shares, in each case free and clear of resignationall Liens (other than the restrictive legends as provided in Section 5.6(a), effective as issued in the name of the Closing, from each of the members of the board of directors of the Acquired CompaniesPurchaser or its Affiliate(s);
(iii) each of a registration rights agreement in form and substance reasonably satisfactory to the deliverables contemplated Company and the Purchaser (the “Registration Rights Agreement”) duly executed by Section 2.5(a)the Company;
(iv) certification a legal opinion of Company Counsel, dated as of the Closing Date, which shall include, among other things, an opinion regarding the exemption of the Transaction from the registration requirements under the Securities Act, in substantially the form and substance reasonably satisfactory to the Company;
(v) a certificate of the Secretary of the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h(the “Secretary’s Certificate”), dated as of the Closing Date Date, (a) certifying the resolutions adopted by the Board of Directors or a duly authorized committee thereof approving the transactions contemplated by this Agreement and signed by an officer the issuance of the Shares, and (b) certifying as to the incumbency of certain officers of the Company, certifying that in substantially the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedform attached hereto as Exhibit A;
(vi) the Compliance Certificate referred to in Section 6.1(h) hereof;
(vii) a certificate of good standing for each of the Company and its Subsidiaries issued by the Secretary or an Assistant Secretary of State (or equivalent officercomparable office) of the Seller certifying that attached thereto are true and complete copies jurisdiction of all resolutions adopted by the board its incorporation, CDFI and/or CDI, as appropriate, as of directors a date within five (5) Business Days of the Seller authorizing Closing Date;
(viii) resignation letters in form and substance reasonably satisfactory to the execution, delivery and performance of this Agreement Company and the Transaction Documents to which Purchaser from the Seller is a party, 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 therebyResigning Directors; and
(viiix) duly non-solicitation agreements in form and substance reasonably satisfactory to the Purchaser executed counterparts to each of by the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementResigning Directors.
(b) At On or prior to the Closing, Closing Date the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, Purchaser shall deliver or cause to be delivered to Buyer:the Company the following (the “Purchaser Deliverables”):
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted this Agreement, duly executed by the board of directors of Purchaser;
(ii) the Company authorizing Registration Rights Agreement, duly executed by the execution, delivery and performance of this Agreement and Purchaser;
(iii) a duly executed officer’s certificate in the Transaction Documents to which the Company is a party, and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are form set forth in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and therebyExhibit B hereto; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(Biv) the Closing Date Payment Purchase Price and, if applicable, the Option Purchase Price, in U.S. dollars and in immediately available funds, by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the followingCompany as set forth below: Bank: Address: Account Name: Account Number: Routing Number:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Sources: Securities Purchase Agreement (Hanmi Financial Corp)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Initial Closing and at each Subsequent Closing, Seller and the Seller will deliver, Buyer shall execute and deliver or cause to be delivered, to Buyer:
(i) a stock certificate evidencing executed and delivered the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;
(ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer willfollowing:
(i) at the each Subsequent Closing, deliver, or cause an Assignment of the Pending Management Agreement required to be delivered, to transferred at such Subsequent Closing in substantially the Seller:
(A) evidence -44- form of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached Exhibit N hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents pursuant to which Buyer is a party▇▇▇ Management Limited Partnership shall assign such Pending Management Agreement to Buyer, free and clear of all rights, liens, claims and encumbrances other than pursuant to this Agreement;
(ii) paysuch instruments as are required to be delivered at the Closing under each of the Acquisition Agreements which are closing on the applicable Closing Date;
(iii) such certificates of each of the parties signed by its respective authorized officers to evidence compliance with the conditions set forth in Article VIII as may be reasonably requested by the other parties;
(iv) agreements and such other instruments as are required by lenders in connection with the assumption of the Assumed Loans;
(v) At each Subsequent Closing, an assignment, transfer and conveyance of the Withdrawn Assets relating to the Phase II Shopping Center(s) being transferred to Buyer at such Subsequent Closing, in form reasonably satisfactory to Buyer and Seller, and consist with the other assignment forms attached to this Agreement, pursuant to which ▇▇▇ Management Limited Partnership shall assign such Withdrawn Assets to Buyer, free and clear of all rights, liens, claims and encumbrances other than as permitted pursuant to the terms of this Agreement; and
(vi) the Net Consideration payable at the applicable Closing in accordance with Section 2.04.
(b) In addition, at the Initial Closing, Seller and Buyer shall execute and deliver or cause to be paid, on behalf of the Seller or the Acquired Companies, the followingexecuted and delivered:
(Ai) an assignment of the Interests in substantially the form of Exhibit H hereto pursuant to which Seller shall convey the Interests to Buyer, free and clear of all rights, liens, claims and encumbrances other than pursuant to this Agreement and subject to restrictions on transfer under federal or state securities laws;
(ii) a Non Competition Agreements in the form of Exhibit J-1 attached hereto and made a part hereof executed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and in the form of Exhibit J-2 attached hereto and made a part hereof executed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇;
(iii) a Registration Rights Agreement referred to in Exhibit F attached hereto, executed by the Company [and the Operating Partnership];
(iv) If Buyer, in its sole discretion, elected to enter into the New One ▇▇▇▇▇ Avenue Lease, the New One ▇▇▇▇▇ Avenue Lease, executed by Buyer and the owner of One ▇▇▇▇▇ Avenue;
(v) an opinion of counsel of Seller regarding the due organization of Seller and the due execution and delivery of this Agreement by Seller, in form and substance reasonably acceptable to Buyer;
(vi) an opinion of counsel of Buyer regarding the due organization of Buyer and the due execution and delivery of this Agreement by Buyer, in form and substance reasonably acceptable to Seller;
(vii) the Consideration payable at the Initial Closing in accordance with Section 2.04;
(or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later dateviii) The WellsPark Group Partnership Agreement and Certificate of Limited Partnership relating thereto), the Company Transaction Expenses certified as true, correct and complete by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; andSeller;
(Bix) at Originals of the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts Management Agreements and to the lenders and all other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.tangible Assets;
Appears in 1 contract
Sources: Management and Portfolio Agreement (SPG Realty Consultants Inc)
Closing Deliveries. Subject Administrative Agent shall have ------------------ received each of the following documents, instruments and agreements, each of which shall be in form and substance and executed in such counterparts as shall be acceptable to Administrative Agent and each Bank and each of which shall, unless otherwise indicated, be dated the terms set forth herein:
(a) At the Closing, the Seller will deliver, or cause to be delivered, to BuyerClosing Date:
(i) a stock certificate evidencing Note payable to the Sharesorder of each Bank, each in the amount of such Bank's Commitment, duly executed by Borrower;
(ii) a Borrower Pledge Agreement duly executed and delivered by Borrower, together with (A) certificates evidencing all of the issued and outstanding Equity of each Subsidiary of Borrower of every class owned by Borrower, and Borrower's percentage of Equity owned therein, which certificates shall be duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;
and (iiB) written letters of resignation, effective such financing statements as of Administrative Agent shall request to evidence and perfect the Closing, from each of the members of the board of directors of the Acquired CompaniesLiens granted pursuant to such Borrower Pledge Agreement;
(iii) a Subsidiary Pledge Agreement duly executed and delivered by each First Tier Subsidiary, together with (A) certificates evidencing all of the deliverables contemplated issued and outstanding Equity of each Subsidiary of each such First Tier Subsidiary of every class owned by Section 2.5(a)each such First Tier Subsidiary, and such First Tier Subsidiary's percentage of Equity owned therein, which certificates shall be duly endorsed or accompanied by stock powers executed in blank, and (B) such financing statements as Administrative Agent shall request to evidence and perfect the Liens granted pursuant to such Subsidiary Pledge Agreement;
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of Mortgages to be executed on the Closing Date pursuant to Section 7.1(a), duly executed and signed delivered by an officer of the CompanyBorrower and -------------- its Subsidiaries (as applicable), certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code together with such other assignments, conveyances, amendments, agreements and proof reasonably other writings, including, without limitation, UCC-1 and UCC-3 financing statements, in form and substance satisfactory to Buyer that the Company shall have provided notice to the IRS Administrative Agent, creating first and prior Liens in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)all Borrowing Base Properties;
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from Collateral Assignments duly executed by Borrower, together with such financing statements as Administrative Agent shall request to evidence and perfect the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedLiens granted pursuant to such Collateral Assignments;
(vi) such financing statements (including, without limitation, the financing statements referenced in subclauses (ii), -------------- (iii) and (iv) above) in form and substance acceptable to Administrative ----- ---- Agent as Administrative Agent shall specify to fully evidence and perfect all Liens contemplated by the Loan Papers, all of which shall be filed of record in such jurisdictions as Administrative Agent shall require in its sole direction;
(vii) a Subsidiary Guaranty duly executed and delivered by each Subsidiary of Borrower (other than Voyager) in favor of Banks;
(viii) a copy of the articles or certificate of incorporation, certificate of limited partnership, articles of organization or comparable charter documents, and all amendments thereto, of each Credit Party accompanied by a certificate that such copy is true, correct and complete, and dated within ten (10) days of the Closing Date (or within such other period as acceptable to Administrative Agent), issued by the appropriate Governmental Authority of the jurisdiction of incorporation or organization of each Credit Party, and accompanied by a certificate of the Secretary or an Assistant Secretary comparable Authorized Officer of each Credit Party that such copy is true, correct and complete on the Closing Date;
(or equivalent officerix) a copy of the Seller certifying bylaws, partnership agreement, regulations, operating agreement or comparable charter documents, and all amendments thereto, of each Credit Party accompanied by a certificate of the Secretary or comparable Authorized Officer of each Credit Party that attached thereto are true such copy is true, correct and complete as of the Closing Date;
(x) certain certificates and other documents issued by the appropriate Governmental Authorities of such jurisdictions as Administrative Agent has requested relating to the existence of each Credit Party and to the effect that each Credit Party is in good standing with respect to the payment of franchise and similar Taxes and is duly qualified to transact business in such jurisdictions;
(xi) a certificate of incumbency of all officers of each Credit Party who will be authorized to execute or attest to any Loan Paper, dated the Closing Date, executed by the Secretary or comparable Authorized Officer of each Credit Party;
(xii) copies of all resolutions adopted by or comparable authorizations approving the board of directors of the Seller Loan Papers and authorizing the execution, delivery and performance of transactions contemplated by this Agreement and the Transaction Documents to which other Loan Papers, duly adopted by the Seller is a party, and the consummation Board of Directors or comparable authority of each Credit Party accompanied by certificates of the transactions contemplated hereby Secretary or comparable officer of each Credit Party that such copies are true and therebycorrect copies of resolutions duly adopted at a meeting of or (if permitted by applicable Law and, if required by such Law, by the bylaws or other charter documents of such Credit Party) by the unanimous written consent of the Board of Directors of each Credit Party, and that all such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified, or revoked in any respect, and are in full force and effect and are all as of the resolutions adopted in connection with the transactions contemplated hereby and thereby; andClosing Date;
(viixiii) duly executed counterparts an opinion of ▇▇▇▇▇▇ & Hanger, L.L.P., special counsel for Borrower, dated the Closing Date, favorably opining as to the enforceability of each of the Transaction Documents Loan Papers and otherwise in form and substance satisfactory to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.Administrative Agent;
(bxiv) At an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special Michigan counsel for Administrative Agent, dated the ClosingClosing Date, favorably opining as to the Company will, enforceability of the Mortgages in Michigan and the Seller will cause the Company otherwise in form and its Subsidiaries to, deliver, or cause substance satisfactory to be delivered to Buyer:Administrative Agent;
(ixv) an opinion of ▇▇▇▇▇▇▇ Link, Esq., special Indiana counsel for Administrative Agent, dated the Closing Date, favorably opining as to the enforceability of the Mortgages in Indiana and otherwise in form and substance satisfactory to Administrative Agent;
(xvi) a certificate signed by an Authorized Officer of Borrower stating that (a) the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true representations and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of warranties contained in this Agreement and the Transaction Documents to which other Loan Papers are true and correct in all respects, (b) no Default or Event of Default has occurred and is continuing, (c) except as otherwise set forth in the Company is a partypost-closing letter agreement dated as of the date hereof between Borrower, Administrative Agent and the Banks, all conditions set forth in this Section 8.1 and Section 8.2 have been satisfied, and (d) after giving ----------- ----------- effect to the consummation initial Borrowing and the issuance of the transactions contemplated hereby initial Letter of Credit, Borrower and therebyeach other Credit Party are Solvent;
(xviii) certificates from Borrower's insurance broker setting forth the insurance maintained by Borrower, and stating that all such resolutions are insurance is in full force and effect effect, that all premiums due have been paid and are all the resolutions adopted in connection that such insurance is adequate and complies with the transactions contemplated hereby requirements of Section 10.6; and thereby; and------------
(iixix) duly executed counterparts to a copy of each of the Transaction Documents Hedge Agreement to which the Company Borrower or any Company Subsidiary other Credit Party is a party accompanied by a certificate executed by an Authorized Officer of Borrower certifying that such copies are accurate and such other documents or instruments as Buyer reasonably requests complete and are reasonably necessary to consummate represent the complete understanding and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence agreement of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Scheduleparties thereto.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller LSI will deliver, deliver or cause to be delivered, delivered to BuyerPurchaser:
(i) a stock certificate evidencing copy of each of the SharesAncillary Agreements other than the ▇▇▇▇ of Sale and the Ground Lease, duly endorsed in blank executed by LSI or accompanied by stock powers or other instruments one of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoits wholly-owned Subsidiaries (as applicable);
(ii) written letters the ▇▇▇▇ of resignationSale, effective as of the Closing, from duly executed by each of the members of the board of directors of the Acquired CompaniesSeller;
(iii) each documentation effecting the assignment to Purchaser of the deliverables contemplated by Section 2.5(a)Cash Deposits, in form and substance reasonably satisfactory to Purchaser;
(iv) certification an original certificate of good standing for each Seller from the State of Delaware, as of a date that is no more than three Business Days prior to the Closing Date;
(v) an executed affidavit or certificate of non-foreign status from each Seller;
(vi) certified copies of the resolutions of LSI’s board of directors authorizing the execution, delivery, and performance of this Agreement and each Ancillary Agreement to which LSI will be a party, and certified copies of the resolutions of each other Seller’s board of directors authorizing the execution, delivery, and performance of each Ancillary Agreement to which such Seller will be a party;
(vii) the Deed (or, if the Parties proceed with the Partial Sale Alternative, the First Deed);
(viii) an affidavit in the form attached hereto as Exhibit J and such other documents in favor of the Title Company (but not in accordance with Treasury Regulations Sections 1.1445-2(c)(3favor of Purchaser) and 1.897-2(h)relating to title insurance as are customarily provided by a seller to a title company in Multnomah County, Oregon;
(ix) a certificate duly executed on behalf of LSI by an authorized officer of LSI, dated as of the Closing Date and signed by an officer Date, certifying as to the satisfaction of the Company, certifying that the Shares are not conditions set forth in Sections 8.1 and 8.2 (“United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2LSI’s Closing Certificate”);
(vx) a good standing certificate (or its equivalent) receipt for each of the Acquired Companies from Closing Cash Payment and all amounts paid by Purchaser at the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents Closing pursuant to which the Seller is a party, 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 therebySection 1.5; and
(viixi) if the Parties are proceeding with the Partial Sale Alternative, the Ground Lease and related Memorandum of Lease, duly executed counterparts to each by LSI Gresham Sub or any other Seller that, as of the Transaction Documents to which Closing Date, is the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective owner of the transactions contemplated by this AgreementGresham Facilities Real Property.
(b) At the Closing, the Company will, and the Seller Purchaser will cause the Company and its Subsidiaries to, deliver, deliver or cause to be delivered to BuyerLSI:
(i) the Closing Cash Payment by wire transfer to an account or accounts designated by LSI in writing no less than two (2) Business Days prior to the Closing Date;
(ii) a certificate copy of each of the Secretary Ancillary Agreements other than the Ground Lease, duly executed by Purchaser or an Assistant Secretary one of ON’s other Subsidiaries (or equivalent officeras applicable);
(iii) certified copies of the Company certifying that attached thereto are true and complete copies resolutions of all resolutions adopted by the board of directors of ON and the Company board of directors of Purchaser authorizing the execution, delivery delivery, and performance of this Agreement and the Transaction Documents each Ancillary Agreement to which the Company is ON or Purchaser will be a party, and the consummation certified copies of the transactions contemplated hereby and therebyresolutions of the board of directors of each of ON’s other Subsidiaries entering into any Ancillary Agreement authorizing the execution, delivery, and performance of each such Ancillary Agreement;
(iv) an original certificate of good standing for Purchaser from the State of Delaware, as of a date that all such resolutions are is no more than three Business Days prior to the Closing Date;
(v) a certificate duly executed on behalf of Purchaser by an authorized officer of Purchaser, dated as of the Closing Date, certifying as to the satisfaction of the conditions set forth in full force Sections 9.1 and effect and are all 9.2 (“Purchaser’s Closing Certificate”);
(vi) a written acknowledgment that LSI is entitled to retain the resolutions adopted in connection with the transactions contemplated hereby and therebyDeposit; and
(iivii) if the Parties are proceeding with the Partial Sale Alternative, the Ground Lease and related Memorandum of Lease, duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementPurchaser.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At Except as otherwise indicated below, at the Closing, Sellers shall deliver the Seller will deliver, or cause to be delivered, following to Buyer:
(i) each of the Ancillary Agreements (other than the Pharmacovigilance Agreement and the Quality Assurance Agreement) to which a stock certificate evidencing the SharesSeller or any of its Affiliates is a party, validly executed by a duly endorsed in blank authorized officer of such Seller or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoits applicable Affiliate;
(ii) written letters of resignation, effective as a receipt by Sweden Seller acknowledging receipt of the ClosingAtacand Closing Payment in satisfaction of Buyer’s obligations pursuant to Section 2.3.1, from each validly executed by a duly authorized representative of the members of the board of directors of the Acquired CompaniesSweden Seller;
(iii) each a receipt by UK Seller acknowledging receipt of the deliverables contemplated Arimidex/Casodex Closing Payment in satisfaction of Buyer’s obligations pursuant to Section 2.3.1, validly executed by Section 2.5(a)a duly authorized representative of UK Seller;
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof evidence reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions Purchased Assets are being transferred free and clear of Treasury Regulations Section 1.897-2(h)(2);any Encumbrance other than Permitted Encumbrances; and
(v) a good standing certificate the Purchased Assets; provided, that (or its equivalentA) for each with respect to tangible Purchased Assets, delivery shall, unless the Parties otherwise mutually agree, be to the locations and on the timeframes set forth in Schedule 2.4.2(a)(v), (B) with respect to physical delivery of the Acquired Companies from Purchased Information, Purchased Product Records, Purchased Regulatory Approvals and Purchased Regulatory Information, the secretary provisions of state or similar Governmental Body Section 4.6.3 shall apply; and (C) Sellers may retain copies of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement Purchased Regulatory Documentation and the Transaction Documents Purchased Product Records included within the Purchased Assets (and, for the avoidance of doubt, prior to which delivering or making available any files, documents, instruments, papers, books and records containing Purchased Product Records or constituting Purchased Regulatory Documentation to Buyer, Sellers shall be entitled to redact from such files, documents, instruments, papers, books and records any information to the Seller is a party, and extent that it does not relate to 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementProduct Business).
(b) At the Closing, Buyer shall deliver the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause following to be delivered to BuyerSellers:
(i) a certificate each of the Secretary or an Assistant Secretary Ancillary Agreements (or equivalent officer) of other than the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Pharmacovigilance Agreement and the Transaction Documents Quality Assurance Agreement) to which the Company Buyer or any of its Affiliates is a party, and the consummation validly executed by a duly authorized officer 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 therebyBuyer or its applicable Affiliate; and
(ii) duly executed counterparts to each the Closing Payments in accordance with Section 2.3.1 (along with a U.S. Federal Reserve reference or similar number evidencing execution of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreementpayment).
(c) Buyer will:
(ishall conduct a quality and completeness review of the Purchased Regulatory Documentation transferred to it pursuant to Section 2.4.2(a)(v) at and the ClosingTransitional Services Agreement promptly following such transfer and, deliverwithin 30 days after such transfer, shall notify Sellers in writing of any problems or cause to be deliveredissues experienced by Buyer regarding the completeness, navigation or readability of such transferred Purchased Regulatory Documentation that Buyer reasonably and in good faith believes are related to the Seller:
transfer of such Purchased Regulatory Documentation (Aand not, for example, related to Buyer system capabilities or compatibility). Sellers shall use their commercially reasonable efforts to assist B▇▇▇▇ in remedying any such problems or issues (if any) evidence with respect to the Purchased Regulatory Documentation as soon as reasonably practicable following Sellers’ receipt of Buyer’s notice of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedulesame.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will deliver, shall deliver or cause to be delivered, delivered to Buyerthe Purchaser:
(i) a stock certificate evidencing to the Sharesextent certificated, certificate(s) representing all of the Equity Interests, together with membership interest transfer powers, duly endorsed in blank and certificates representing all of the membership interests or accompanied by shares of capital stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe Company Subsidiaries;
(ii) written letters of resignation, effective as copies of the ClosingEscrow Agreement, from each of the members of Lease Agreement, the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Transition Services Agreement and the any other Transaction Documents to which the Seller is a party, duly executed by the Seller and the consummation any of its Affiliates (as applicable);
(iii) an officer’s certificate, dated as of the transactions contemplated hereby Closing Date, duly executed by an authorized officer of the Seller, stating that the conditions to the Closing set forth in Sections 8.2(a) and thereby(b) have been satisfied (the “Seller Closing Certificate”);
(iv) a secretary’s certificate, dated as of the Closing Date, duly executed by the Secretary of the Seller, attesting to: (A) the incumbent officers of the Seller; and that all such (B) resolutions are of the Board of Directors of the Seller and, if required under the Organizational Document of the Seller, the stockholders of the Seller, in full force each case approving the Transactions;
(v) copies of the Organizational Documents of the Company and effect each of the Company Subsidiaries certified by the appropriate Governmental Entity (as to Organizational Documents filed therewith) as of a date as near as reasonably practicable to the Closing Date;
(vi) to the extent issued by each of the relevant jurisdictions, good standing certificates for the Company and are all each of the resolutions adopted in connection with Company Subsidiaries for their respective jurisdictions of organization, each dated as of a date as near as reasonably practicable to the transactions contemplated hereby and thereby; andClosing Date;
(vii) duly executed counterparts to resignations of all officers and directors of the Company and each of the Transaction Documents to which Company Subsidiaries;
(viii) an affidavit, duly executed and acknowledged by an officer of the Seller, certifying that the Seller is a party “domestic corporation” within the meaning of Sections 7701(a)(3) and such other documents or instruments as Buyer reasonably requests (4) of the Code and are reasonably necessary Sections 1.897-1(j) and 1.1445-2 of the applicable Treasury Regulations;
(ix) any additional items required to consummate and make effective the transactions contemplated be delivered at Closing by this AgreementSection 8.2.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, Purchaser shall deliver or cause to be delivered to Buyerthe Seller:
(i) a certificate evidence reasonably satisfactory to the Seller of: (A) payment of the Secretary or an Assistant Secretary Escrow Deposit to the Escrow Agent as described in Section 2.4; and (or equivalent officerB) payment of the Company certifying that attached thereto are true and complete remainder of the Purchase Price (less the Escrow Deposit) to the Seller;
(ii) copies of all resolutions adopted by the board of directors of Escrow Agreement, the Company authorizing Lease Agreement, the execution, delivery and performance of this Transition Services Agreement and the any other Transaction Documents to which the Company Purchaser is a party, and duly executed by the consummation Purchaser;
(iii) an officer’s certificate, dated as of the transactions contemplated hereby Closing Date, duly executed by an authorized officer of the Purchaser, stating that the conditions to the Closing set forth in Sections 8.1(a) and thereby(b) have been satisfied (the “Purchaser Closing Certificate”);
(iv) a 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 that all such (B) resolutions are in full force and effect and are all of the resolutions adopted in connection with Board of Directors or similar governing body of the transactions contemplated hereby and therebyPurchaser approving the Transactions; and
(iiv) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause additional items required to be delivered, to the Seller:
(A) evidence of the purchase delivered at Closing by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleSection 8.2.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will deliver, deliver or cause to be delivereddelivered to the Purchaser, to Buyerfor itself and as agent for the Designated Affiliates:
(i) a stock certificate evidencing ▇▇▇▇ of sale in the Sharesform of Exhibit B (the “▇▇▇▇ of Sale”), duly endorsed in blank or accompanied executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretothe Seller;
(ii) written letters an assignment and assumption agreement in the form of resignationExhibit C (the “Assignment and Assumption Agreement”), effective as of duly executed by the Closing, from each of the members of the board of directors of the Acquired CompaniesSeller;
(iii) each a share sale and transfer agreement in respect of the deliverables contemplated Shares in the form of Exhibit D (the “Share Transfer Agreement”), duly executed and notarized by Section 2.5(a)the Share Selling Affiliate;
(iv) certification from such deeds, documents, instruments and actions as are necessary or appropriate to effect the Company valid sale and transfer of the Shares to the Purchaser or its Designated Affiliate, duly executed by the Share Selling Affiliate, and/or the managing director or the Acquired Company, as required pursuant to German Law;
(v) assignments of all Purchased Intellectual Property in the forms of Exhibit E-1 and E-2 (collectively, the “IP Assignments”) and License of Shared Intellectual Property in the form of Exhibit E-3 (the “IP License Agreement”), duly executed by the Seller;
(vi) for each parcel of Owned Real Property, a recordable warranty deed or such other appropriate document or instrument of transfer in accordance with Treasury Regulations Sections 1.1445-2(c)(3local custom, each in form and substance reasonably satisfactory to the Purchaser and its counsel and executed by the Seller;
(vii) and 1.897-2(h)a certificate, dated as of the Closing Date and signed Date, executed by an officer the Seller confirming the satisfaction of the Company, certifying that the Shares are not “United States real property interest” within the meaning of conditions specified in Section 897(c)(16.1(a) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(26.1(b);
(vviii) a good standing certificate (or its equivalent) for each the resignations of the managing directors of the Acquired Companies from Company set forth on Schedule 2.9(a)(viii), to the secretary of state or similar Governmental Body of extent that such resignations have been requested in writing by the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedPurchaser not less than two (2) Business Days prior to Closing;
(viix) a certificate transition services agreement in the form of Exhibit F (the “Transition Services Agreement”), duly executed by the Seller;
(x) a supply agreement in the form of Exhibit G (the “TBT Supply Agreement”), duly executed by the Seller;
(xi) a supply agreement in the form of Exhibit H (the “TOT Supply Agreement”), duly executed by the Seller;
(xii) a supply agreement in the form of Exhibit I (the “TPP/LPE Supply Agreement”), duly executed by the Seller;
(xiii) an assignment of the Secretary or an Assistant Secretary environmental indemnity from Ciba contained in the Ciba Basic Agreement in the form of Exhibit J (or equivalent officerthe “Ciba Environmental Indemnity Assignment”);
(xiv) a copy of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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 therebyApproval Order; and
(viixv) duly executed counterparts to each evidence that notice of termination of the Transaction Documents to which Acquired Company’s participation in the Seller is a party domination and such other documents or instruments as Buyer reasonably requests profit and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreementloss pooling agreements has been made in accordance with German Law.
(b) At the Closing, the Company Purchaser will, for itself and the Seller will cause the Company and as agent for its Subsidiaries toDesignated Affiliate, deliver, deliver or cause to be delivered to Buyerthe Seller, for itself and as agent for the Share Selling Affiliate:
(i) a certificate of the Secretary or an Assistant Secretary Initial Cash Consideration, fifty percent (or equivalent officer50%) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors aggregate amount of the Company authorizing the execution, delivery and performance of this Agreement Trade Accounts Payable Adjustment Payment and the Transaction Documents to which the Company is a partyShared Accounts Payable Adjustment Payment, and the consummation of the transactions contemplated hereby Accrued Payroll 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Benefits Adjustment Payment by wire transfer of immediately available funds to in U.S. dollars in the account designated by amount and manner specified in Section 2.5(b); the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a partyPurchaser;
(ii) paythe Assignment and Assumption Agreement, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:duly executed by
(Aiii) at the Closing ▇▇▇▇ of Sale, duly executed by the Purchaser;
(iv) the Share Transfer Agreement, duly executed and notarized by the Purchaser or its Designated Affiliate, as applicable;
(v) the IP Assignments, if any, that call for a later due date is applicable with regard to signature by the relevant Company Transaction ExpensePurchaser and/or its Designated Affiliates, at duly executed by the Purchaser and/or such later date)Designated Affiliates, as applicable, and the Company Transaction Expenses IP License Agreement, duly executed by wire transfer the Purchaser;
(vi) a certificate, dated as of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date, duly executed by the Purchaser confirming the satisfaction of the conditions specified in Sections 6.2(a) and 6.2(b); Purchaser; Purchaser; and
(Bvii) at the ClosingTransition Services Agreement, duly executed by the
(viii) the Estimated Company Indebtedness TBT Supply Agreement, duly executed by wire transfer of immediately available funds in the amounts and to Purchaser;
(ix) the lenders and other holders of Indebtedness identified on TOT Supply Agreement, duly executed by the Company Indebtedness Payoff SchedulePurchaser;
(x) the TPP/LPE Supply Agreement, duly executed by the
(xi) the Ciba Environmental Indemnity Assignment, duly executed by the Acquired Company.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, Sellers shall deliver to Buyer the Seller will deliver, or cause to be delivered, to Buyerfollowing:
(i) a stock certificate evidencing the Shares▇▇▇▇ of sale, duly endorsed in blank or accompanied by stock powers or such other good and sufficient instruments of assignment and transfer duly executed as Buyer shall reasonably request, to assign and to transfer to Buyer all of Sellers’ right, title and interest in blankand to the Purchased Assets free and clear of all security interests, liens, claims and encumbrances, other than liens arising in connection with all required stock transfer tax stamps affixed theretothe Discounted Leases Bank Debt;
(ii) written letters an assignment of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies;all trade names and any other trademarks or service
(iii) each of state and county level UCC lien searches indicating that the deliverables contemplated by Section 2.5(a)Purchased Assets are free from any liens or encumbrances, other than liens arising in connection with the Discounted Leases Bank Debt;
(iv) certification any Required Consents (as that term is defined in Section 10(b));
(v) recent good standing certificates from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3Secretary of State;
(vi) certified resolutions of Sellers’ Board of Directors and 1.897-2(h)Shareholders approving this Agreement and the transactions contemplated hereby;
(vii) duly executed Secretary of State Amendments of Articles of Incorporation forms (BCA 10.30) changing the Sellers’ names to names not containing the words “CM”, “Financial”, “Keystone” or “Municipal”;
(viii) a certificate executed by Sellers and Shareholders dated as of the Closing Date and signed by an officer stating: (A) that all of the Companyrepresentations and warranties of Sellers and Shareholders set forth in this Agreement are materially true and correct with the same force and effect as if such representations and warranties were made on the Closing Date, certifying and (B) that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) Sellers have performed and complied with all of the Code covenants and proof reasonably satisfactory obligations to Buyer that be performed or complied with by it under the Company shall have provided notice terms of this Agreement on or prior to the IRS Closing Date;
(ix) evidence of assignment of the office lease pursuant to Section 14(i).
(x) Bulk Sales Stop order issued by the Department of Employment Security in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v12(d) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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 therebyhereof; and
(viixi) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer may reasonably requests request in order to evidence and are reasonably necessary effectuate the obligations and duties of Sellers pursuant to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, Buyer shall deliver to Sellers the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
following: (i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents Cash Purchase Price pursuant to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit DSection 4;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Sources: Asset Purchase Agreement
Closing Deliveries. Subject to Prior to, or concurrently with, the terms set forth hereinexecution of this Amendment, the Borrowers shall:
(a) At execute and deliver to the ClosingAgent a fully executed Borrower Assumption Agreement in the form of Exhibit A attached hereto;
(b) execute and deliver to each Lender that has requested a Revolving Note, a new or replacement Revolving Note, as applicable, in the Seller will deliveramount specified in Schedule 1 to the Credit Agreement (after giving effect to this Amendment);
(c) cause each Loan Party party to the Pledge Agreement to execute and deliver to the Agent, or for the benefit of the Lenders, an Amended and Restated Pledge Agreement, in form and substance satisfactory to the Agent, with respect to the Pledged Securities;
(d) cause any Person that owns any Equity Interests in Ramaco Coal, LLC to be delivered, to Buyer:
(i) a stock certificate evidencing execute and deliver to the SharesAgent, duly endorsed in blank or accompanied by stock for the benefit of the Lenders, appropriate transfer powers or other instruments for each of transfer duly executed in blankthe Pledged Securities of Ramaco Coal, with all required stock transfer tax stamps affixed theretoLLC that are certificated, and (ii) deliver to the Agent, for the benefit of the Lenders, the Pledged Securities (to the extent such Pledged Securities are certificated) of Ramaco Coal, LLC;
(iie) written letters of resignationcause Ramaco Coal, effective as LLC to deliver to the Agent an officer’s certificate certifying the names of the Closingofficers of such Person that are authorized to sign the Loan Documents, from each together with the true signatures of such officers and certified copies of (i) the members resolutions of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1or comparable documents) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions such Person evidencing approval of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement Amendment and the Transaction any other Loan Documents to which the Seller is a partyrequired in connection herewith, and (ii) the consummation organizational documents of such Person;
(f) deliver to the Agent certified copies 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors (or comparable documents) of the Company authorizing each Borrower evidencing approval of the execution, delivery and performance of this Agreement Amendment and any other Loan Documents required in connection herewith;
(g) deliver to the Transaction Documents to which the Company is Agent a party, and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all or good standing certificate (or comparable document, if neither certificate is available in the resolutions adopted applicable jurisdiction), as the case may be, for each Borrower, issued on or about the date hereof by the Secretary of State in connection with the transactions contemplated hereby and thereby; andstate such entity is formed;
(iih) duly deliver to the Agent accurate and complete copies of any Lien, pending suit, title and other public record searches required by the Agent;
(i) deliver to the Agent an executed counterparts legal opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ PLLC, in form and substance satisfactory to each of the Transaction Documents Agent, which shall cover such matters incident to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at Amendment, and the Closing, deliver, or cause to be delivered, to other Loan Documents as the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit DAgent may reasonably require;
(Bj) the Closing Date Payment by wire transfer of immediately available funds execute and deliver to the account designated by Agent a letter of direction authorizing the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paidAgent, on behalf of the Seller or Lenders, to disburse the Acquired Companiesproceeds of the Loans on the date hereof, which letter of direction includes the following:authorization to pay the fees and expenses owing by the Borrowers in connection with this Amendment and the wire instructions that set forth the locations to which such funds shall be sent;
(Ak) at the Closing (or if a later due date is applicable with regard deliver to the relevant Company Transaction ExpenseAgent certificates of insurance on ▇▇▇▇▇ 25 and 27 or 28 form and proof of endorsements satisfactory to the Agent (which proof of endorsement may be provided within a reasonable time after closing of this Amendment as long as such certificates of insurance, satisfactory to the Agent, are provided to the Agent prior to closing), providing for adequate personal property and liability insurance for Ramaco Coal, LLC, with the Agent listed as lender’s loss payee and additional insured, as appropriate;
(l) deliver to each Lender, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two least three (23) Business Days after payment is made for payments prior to be made after the Closing Datedate hereof, all documentation and other information requested by any such Lender required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations requested at least five (5) Business Days prior to the date hereof, including, without limitation, the USA PATRIOT Act and Beneficial Ownership Regulations; and
(Bm) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and deliver to the lenders and other holders of Indebtedness identified on Agent evidence that Investec Bank PLC has consented to the Company Indebtedness Payoff Scheduletransactions contemplated hereby with respect to the Permitted ▇▇▇▇▇ Acquisition Indebtedness.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will shall deliver, or cause to be delivered, to Buyerthe Purchaser:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoNet TxDOT Cash (as defined on Schedule 1.1(a)(xiii));
(ii) written letters a ▇▇▇▇ of resignationsale, effective assignment and assumption agreement, in substantially the form attached hereto as Exhibit A, effecting the assignment by the Seller to the Purchaser of the Closing, from each Purchased Assets and the assumption by the Purchaser of the members Assumed Liabilities (the “▇▇▇▇ of Sale”), duly executed by the board of directors of the Acquired CompaniesSeller;
(iii) a special warranty deed, in substantially the form attached hereto as Exhibit B (the “Deed”), each of duly executed by the deliverables contemplated by Section 2.5(a)Seller;
(iv) certification from an assignment of lease agreement, in substantially the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(hform attached hereto as Exhibit C, but subject to any mutually agreed upon modifications required by the lessors under the lease agreement (the “Lease Assignments”), dated as effecting the assignment by the Seller to the Purchaser of the Closing Date and signed Real Property Leases, duly executed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)Seller;
(v) a good standing certificate an assignment of easements agreement, in substantially the form attached hereto as Exhibit D, but subject to any mutually agreed upon modifications required by the grantors under each assigned easement, (or its equivalent) for each the “Assigned Easements Assignment”), effecting the assignment by the Seller to the Purchaser of the Acquired Companies from Assigned Easements, duly executed by the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedSeller;
(vi) a certificate duly executed copies of the Secretary or an Assistant Secretary Third Party Consents that are listed in Schedule 1.9(a)(vi) (or equivalent officerthe “Closing Consents”);
(vii) a certification of the Seller certifying that attached thereto are true and complete Seller’s non-foreign status as set forth in Treasury Regulation Section 1.1445-2(b);
(viii) copies of all resolutions adopted financing statement terminations, Lien releases or other documentation, in form and substance reasonably satisfactory to the Purchaser, necessary to remove any Liens (other than Permitted Liens) applicable to the Purchased Assets; provided, further, that such documentation may state that such financing statement terminations or Lien releases may be filed after receipt of the payment of the Indebtedness necessary to remove the Liens or within a reasonable time period following the Closing;
(ix) the Seller’s Bring Down Certificate;
(x) a transition services agreement, in substantially the form attached hereto as Exhibit E (the “Transition Services Agreement”), duly executed by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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 therebySeller; and
(viixi) duly executed counterparts a certificate of good standing, or the equivalent, with respect to each the Seller, issued by the Secretary of State of the Transaction Documents to which State of Delaware, dated within ten (10) days of the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementClosing Date.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, Purchaser shall deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(Bi) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a partyPurchase Price;
(ii) paythe ▇▇▇▇ of Sale, or cause to be paid, on behalf of duly executed by the Seller or the Acquired Companies, the following:Purchaser;
(Aiii) at the Closing Lease Assignments, duly executed by the Purchaser;
(or if a later due date is applicable with regard to iv) the relevant Company Transaction ExpenseAssigned Easements Assignment, at such later date)duly executed by the Purchaser;
(v) the Purchaser’s Bring Down Certificate;
(vi) the Transition Services Agreement, duly executed by the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing DatePurchaser; and
(Bvii) at a certificate of good standing, or the Closingequivalent, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and with respect to the lenders and other holders Purchaser, issued by the Secretary of Indebtedness identified on State of the Company Indebtedness Payoff ScheduleState of Delaware, dated within ten (10) days of the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Martin Midstream Partners Lp)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller Warrantors will deliver, deliver or cause to be delivered, delivered to Buyerthe Investor:
(i) a stock certificate evidencing certificates representing the Shares, duly endorsed Shares against payment of the Purchase Price in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, accordance with all required stock transfer tax stamps affixed theretoSection 2.5(b)(i);
(ii) written letters of resignationa certificate, effective dated as of the ClosingClosing Date, from executed by each Warrantor confirming the satisfaction of the members conditions specified in Section 6.1;
(iii) a certificate signed by the chairman of the board of directors or chief executive officer of the Acquired Companies;
(iii) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Investee Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed attaching, as the case may be: (A) the Company's charter and all amendments thereto, certified by an officer the Secretary of State of the jurisdiction of the Company's organization not more than five business days prior to the Closing Date, certifying that (B) the Shares are not “United States real property interest” within the meaning Company's bylaws and all amendments thereto; (C) a certificate of Section 897(c)(1) good standing of the Code Company certified by the Secretary of State of the jurisdiction of the Company's organization and proof reasonably satisfactory to Buyer that the Company shall have provided notice issued not more than five business days prior to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
Closing Date; (v) a good standing certificate (or its equivalentC) for each of Likang Disinfectant and Likang Biological, the Acquired Companies from Articles of Association, Official Reply, Certificate of Approval and amended Business License confirming that it is 100% owned by the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
Company; and (viD) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by of the board of directors or other authorizing body (or a duly authorized committee thereof) of the Seller authorizing Company and of the execution, delivery and performance of Parent relating to this Agreement and the Transaction Documents to which the Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement;
(iv) a receipt for the Purchase Price in form reasonably satisfactory to the Investor; and
(v) evidence reasonably satisfactory to the Investor of the adoption by each of the Subsidiaries of articles of association in the form approved by the Investor in writing.
(b) At the Closing, the Company will, and the Seller Investor will cause the Company and its Subsidiaries to, deliver, deliver or cause to be delivered to Buyerthe Company:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment Purchase Price by wire transfer of immediately available funds to the an account designated specified in writing by the Seller on Annex A; and
(C) duly executed counterparts Company. The Company hereby irrevocably instructs and authorizes the Investor to each pay such portion of the Transaction Documents Purchase Price as is equal to which Buyer is the principal and accrued interest outstanding under the Promissory Notes on the Closing Date to the Investor in prepayment of such principal and accrued interest. Upon such prepayment being effected, the Investor shall deliver to the Company a party;letter from the Investor acknowledging the amount of debt so prepaid.
(ii) paya certificate, or cause to be paid, on behalf dated as of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at , executed by the Closing, Investor confirming the Estimated Company Indebtedness by wire transfer satisfaction of immediately available funds the conditions specified in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleSection 6.2.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will shall deliver, or cause to be delivered, to Buyer, the following:
(i) a stock certificate evidencing certificates representing all of the outstanding Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed stock powers, in blankform and substance reasonably satisfactory to Buyer, with all required stock for transfer tax stamps affixed theretoto Buyer;
(ii) written letters the minute books of resignation, effective each Company and the stock certificate books (including stock certificates for all outstanding shares of capital stock of each Subsidiary that is organized as a corporation) and the stock ledger of the Closing, from each of the members of the board of directors of the Acquired CompaniesCompany that is organized as a corporation;
(iii) a certificate of the secretary or assistant secretary of each of Seller and the deliverables contemplated by Section 2.5(a)Target attaching copies of its Organizational Documents;
(iv) certification a certificate of good standing for the Target as of a recent date from the Company Ohio Secretary of State;
(v) a duly executed certificate of non-foreign status from Seller, substantially in accordance with the form of the sample certification set forth in Treasury Regulations Sections Regulation § 1.1445-2(c)(32(b)(2)(iv)(B), certifying as to Seller’s non-foreign status;
(vi) payoff letters with respect to the Repayment Indebtedness (including the related lien releases and 1.897-2(hinstruments of termination or discharge, or documents committing to release liens or terminate or discharge obligations contingent on the Closing having occurred, reasonably requested by Buyer in order to release all Encumbrances over the properties and assets of the Companies securing obligations under the Repayment Indebtedness), dated as of the Closing Date or within a reasonable time prior to the Closing Date, in form and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof substance reasonably satisfactory to Buyer that Buyer;
(vii) written resignations of the Company shall have provided notice to officers and directors or managers of the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2Companies listed on Schedule 2.2(a)(vii);
(vviii) a good standing certificate (or its equivalent) for evidence of termination of each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws Related Party Agreements identified on Schedule 6.9 hereto in which each of the Acquired Companies is organizedform and substance reasonably satisfactory to Buyer;
(viix) a the certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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 therebybe delivered pursuant to Section 7.2(d); and
(viix) the Retention Agreements or Commitment Letters, duly executed counterparts to each of and delivered by the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementKey Employees, if any.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, shall deliver, or cause to be delivered, to the Seller:
Seller (A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto or, as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds applicable, to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companiesthird parties), the following:
(Ai) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Dateset forth in Section 2.3(d); and
(Bii) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and certificate to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedulebe delivered pursuant to Section 7.3(c).
Appears in 1 contract
Sources: Stock Purchase Agreement (American Tire Distributors Holdings, Inc.)
Closing Deliveries. Subject to the terms set forth herein:
(a) At On or prior to the ClosingClosing (except as otherwise required below), the Seller will deliver, Company shall deliver or cause to be delivered, delivered to Buyereach Purchaser purchasing Units at such Closing the following:
(i) a stock certificate evidencing the Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer this Agreement duly executed in blank, with all required stock transfer tax stamps affixed theretoby the Company;
(ii) written letters of resignation, effective as of the Closing, from each of Escrow Agreement duly executed by the members of Company and the board of directors of the Acquired CompaniesEscrow Agent;
(iii) each in the discretion of the deliverables contemplated Company, either (A) a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver, on an expedited basis, a certificate evidencing the number of shares of Preferred Stock contained in such Purchaser’s Units, or (B) a certificate evidencing the number of shares of Preferred Stock contained in such Purchaser’s Units, (in each case determined by Section 2.5(adividing such Purchaser’s Subscription Amount by the Per Unit Purchase Price), and in each case registered in the name of such Purchaser;
(iv) certification from a Warrant, registered in the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as name of such Purchaser to purchase up to a number of Warrant Shares equal to the number of the Closing Date and signed Units being purchased by an officer of the Companysuch Purchaser at such Closing, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)multiplied by ten;
(v) a good standing certificate check in the amount of the interest accrued on the Subscription Amount held in escrow based upon an interest rate of five percent (or its equivalent5%) per annum and prorated on a daily basis for each day during which the Subscription Amount has been held in escrow, less the amount of any such accrued interest applied by the Acquired Companies from Company, in its sole discretion, to the secretary purchase of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedadditional Units by such Purchaser;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted Registration Rights Agreement duly executed by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, 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 therebyCompany; and
(vii) duly executed counterparts to each a legal opinion of Company Counsel in customary form regarding the issuance of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementUnits.
(b) At On or prior to the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, each Purchaser purchasing Units at such Closing shall deliver or cause to be delivered to Buyerthe Company the following:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and duly executed by such Purchaser;
(ii) the Transaction Documents Escrow Agreement duly executed by such Purchaser;
(iii) such Purchaser’s Subscription Amount by wire transfer to which the Company is a party, and account as specified in the consummation of Escrow Agreement;
(iv) the transactions contemplated hereby and thereby, and that all Registration Rights Agreement duly executed by such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and therebyPurchaser; and
(iiv) duly executed counterparts to each of if the Transaction Documents to which the Company or any Company Subsidiary Purchaser is a party and U.S. citizen, resident for U.S. federal income tax purposes, or otherwise subject to U.S. federal income tax, an IRS Form W-9 completed with respect to such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective Purchaser in accordance with the transactions contemplated by this Agreementinstructions accompanying such form.
(c) Buyer will:
(i) at On the Closing, deliver, the Escrow Agent shall deliver or cause to be delivered, delivered to the Seller:
(A) evidence of Company the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to Subscription Amounts from each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, Purchaser purchasing Units at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Sources: Securities Purchase Agreement (Pressure Biosciences Inc)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller Acquiror will deliver, deliver or cause to be delivered, delivered to BuyerSellers the following:
(i) an amount equal to the Preliminary Purchase Price by wire transfer of immediately available funds to an account (or accounts) designated in writing by Sellers at least two (2) Business Days prior to the Closing;
(ii) an amount equal to the CMFG Life Facility Closing Date Debt Balance by wire transfer of immediately available funds to an account (or accounts) designated in writing by Sellers at least two (2) Business Days prior to the Closing;
(iii) an amount equal to the JPMorgan Facility Closing Date Debt Balance by wire transfer of immediately available funds to an account (or accounts) of JPMorgan Chase Bank, N.A. designated in writing by Sellers at least two (2) Business Days prior to the Closing;
(iv) the duly executed certificate referred to in Section 8.01(a)(iv);
(v) a duly executed counterpart of (A) the Transition Services Agreement, (B) the Amended and Restated Reinsurance Agreements and (C) the Administrative Services Agreement;
(vi) copies (or other evidence) of the approvals of the Governmental Authorities listed in Section 4.03 of the Acquiror Disclosure Schedule;
(vii) a duly executed certificate of the secretary or an assistant secretary of Acquiror, dated as of the Closing Date, as to the resolutions duly and validly adopted by the board of directors, or other governing body, of Acquiror evidencing its authorization of the execution, delivery and performance of the Transaction Agreements to which Acquiror is a party; and
(viii) such other certificates, documents and instruments as may be reasonably necessary to consummate the transactions contemplated by the Transaction Agreements.
(b) At the Closing, Sellers will deliver or cause to be delivered to Acquiror the following:
(i) one or more stock certificate certificates evidencing the SharesShares owned by CMIC, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed thereto;
(ii) written letters resignations of resignation, effective as of the Closing, from each of the members directors of each of the board of directors of the Acquired Companies;
(iii) each of the deliverables contemplated by duly executed certificates referred to in Section 2.5(a8.02(a)(iv);
(iv) certification from a duly executed counterpart of (A) the Company Transition Services Agreement, (B) the Amended and Restated Reinsurance Agreements, (C) the Administrative Services Agreement, (D) the Recapture Agreements, (E) the ▇▇▇▇ of Sale and (F) the CMFG Life Facility Termination and Release;
(v) copies (or other evidence) of the approvals of the Governmental Authorities listed in accordance with Treasury Regulations Sections 1.1445-2(c)(3Section 3.05 of the Seller Disclosure Schedule;
(vi) and 1.897-2(h)a duly executed certificate of the secretary or an assistant secretary of each Seller, dated as of the Closing Date and signed by an officer of the CompanyDate, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice as to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true resolutions duly and complete copies of all resolutions validly adopted by the board of directors directors, or other governing body, of the such Seller authorizing evidencing such Seller’s authorization of the execution, delivery and performance of this Agreement and the Transaction Documents Agreements to which the such Seller is a party, 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; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(iivii) paya certification of non-foreign status of CMIC, or cause to be paid, on behalf for purposes of Section 897 and 1445 of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing DateCode; and
(Bviii) at such other certificates, documents and instruments as may be reasonably necessary to consummate the Closing, transactions contemplated by the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleTransaction Agreements.
Appears in 1 contract
Sources: Stock Purchase Agreement (HCC Insurance Holdings Inc/De/)
Closing Deliveries. Subject In addition to any other documents to be delivered under other provisions of this Agreement, at the terms set forth hereinClosing:
(a) At the Closing, the Seller will Valence Parent shall deliver, or cause to be delivered, to Buyerthe Evolent Entities:
(i) a stock certificate evidencing the SharesCertificate of Merger, duly endorsed in blank or accompanied executed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoValence Parent;
(ii) written letters of resignationall required consents set forth on Annex C attached hereto, effective as of duly executed by the Closingcounterparties thereto, from each of in a form reasonably acceptable to the members of the board of directors of the Acquired CompaniesEvolent Entities;
(iii) each a certification by Valence Parent that meets the requirements of Treasury Regulation Section 1.897-2(h)(1)(i), dated within 30 days prior to the deliverables contemplated by Section 2.5(a)Closing and in form and substance reasonably acceptable to Evolent, along with written authorization for Evolent to deliver such notice form to the Internal Revenue Service on behalf of Valence Parent upon the Closing;
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3certificate of incorporation or formation (as applicable) and 1.897-2(hof each of the Valence Entities (other than Valence India), certified by the Secretary of State or other applicable authority in its jurisdiction of organization, and certificates of good standing of each Valence Entity (other than Valence India) from each jurisdiction in which such Valence Entity is qualified to do business as a foreign entity, each dated as of within ten (10) Business Days prior to the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2)Date;
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary Secretary of state or similar Governmental Body Valence Parent (A) certifying, as complete and accurate as of the jurisdiction under the applicable Laws in which each Closing, attached copies of the Acquired Companies is organizedbylaws of Valence Parent, (B) certifying and attaching all requisite resolutions or actions of Valence Parent’s board of directors approving the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, and (C) certifying to the incumbency of the officers of Valence Parent executing this Agreement and any other documents being executed in connection with the consummation of the transactions contemplated hereby;
(vi) a certificate of the Secretary or an Assistant Secretary of CHS (or equivalent officera) certifying, as complete and accurate as of the Seller certifying that Closing, attached thereto are true and complete copies of the bylaws of CHS, (b) certifying and attaching all requisite resolutions adopted by the or actions of CHS’ board of directors approving the execution and delivery of the Seller authorizing the execution, delivery and performance of this Reorganization Agreement and the Transaction Documents to which the Seller is a party, and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force (c) certifying to the incumbency of the officers of CHS executing the Reorganization Agreement and effect and are all the resolutions adopted any other documents being executed in connection with the transactions contemplated hereby and thereby; and
(vii) duly executed counterparts to each of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, and the consummation of the transactions contemplated hereby thereby;
(vii) evidence of full and therebycomplete payment of all Indebtedness (including payoff letters with respect thereto) and releases of all Encumbrances (other than Permitted Encumbrances) on the assets of Valence Parent, including the termination of all security interests with respect to the assets of Valence Parent related thereto, in each case in a form reasonably acceptable to the Evolent Entities;
(viii) the Reorganization Agreement, duly executed by Valence Parent and that all such resolutions are in full force and effect and are all CHS, together with evidence reasonably acceptable to Evolent of the resolutions adopted in connection with consummation of the transactions contemplated hereby thereby as of prior to the Closing;
(ix) subleases with respect to certain Leased Real Property, in substantially the forms attached hereto as Exhibit D (the “Subleases”), duly executed by CHS and therebyValence Parent;
(x) a transition services agreement, in substantially the form attached hereto as Exhibit E (the “Transition Services Agreement”), duly executed by CHS; and
(iixi) an escrow agreement in a form to be reasonably agreed to by the Securityholders’ Representative and Evolent (the “Escrow Agreement”), duly executed counterparts to by Seller and U.S. Bank National Association (the “Escrow Agent”);
(xii) a copy of the Valuation prepared in accordance with Section 6.9 hereof;
(xiii) resignations of each of the Transaction Documents members of the board of directors and officers, as applicable, of Valence Parent in their capacity as such, duly executed by such individuals;
(xiv) evidence of the termination of each agreement set forth on Section 3.16 of the Disclosure Schedule (excluding any director indemnification agreement) in a form reasonably acceptable to which Evolent; and
(xv) a funds flow statement in the Company or any Company Subsidiary is a party form mutually agreed to by Evolent and such other documents or instruments as Buyer reasonably requests Valence Parent (the “Funds Flow Statement”), duly executed by Valence Parent and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementSecurityholders’ Representative.
(cb) Buyer will:
(i) at the Closing, The Evolent Entities shall deliver, or cause to be delivered, to the SellerSecurityholders’ Representative:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(Bi) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a partyConsideration;
(ii) paythe Certificate of Merger, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:duly executed by Merger Sub;
(Aiii) at the Closing certificates of good standing (or if a later due date is applicable with regard to similar certification) of each Evolent Entity from the relevant Company Transaction Expensejurisdiction of incorporation or formation (as applicable) of each such Evolent Entity, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and each dated within two ten (210) Business Days after payment is made for payments prior to be made after the Closing Date;
(iv) a certificate of the Secretary of Merger Sub (a) certifying and attaching all requisite resolutions or actions of Merger Sub’s sole member approving the execution and delivery of this Agreement by Merger Sub and the consummation of the transactions contemplated hereby, and (b) certifying to the incumbency of the officers of Merger Sub executing this Agreement and any other documents being executed in connection with the consummation of the transactions contemplated hereby;
(v) a certificate of the Secretary of Evolent (a) certifying and attaching all requisite resolutions or actions of Evolent’s board of directors approving the execution and delivery of this Agreement by Evolent and the consummation of the transactions contemplated hereby, and (b) certifying to the incumbency of the officers of Evolent executing this Agreement and any other documents being executed in connection with the consummation of the transactions contemplated hereby;
(vi) the Transition Services Agreement, duly executed by Merger Sub;
(vii) the Escrow Agreement, duly executed by Evolent and the Escrow Agent; and
(Bviii) at the ClosingFunds Flow Statement, duly executed by the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleEvolent Entities.
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will delivershall deliver to Buyer (or to Centerpost or both, or cause to be deliveredrespectively, to Buyer:as indicated):
(i) a stock certificate evidencing To Centerpost, the SharesTangible Assets, duly endorsed in blank or accompanied free and clear of all Encumbrances except as expressly assumed by stock powers or other instruments of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoCenterpost and described on EXHIBIT B;
(ii) written letters To Buyer, the Intangible Assets, free and clear of resignation, effective all Encumbrances except as of the Closing, from each of the members of the board of directors of the Acquired Companiesexpressly assumed by Buyer and described on EXHIBIT B;
(iii) each An Assignment Agreement assigning to Buyer the Contracts, free and clear of the deliverables contemplated all Encumbrances except as expressly assumed by Section 2.5(a)Buyer and described on EXHIBIT B;
(iv) certification from To Buyer or Centerpost, as the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h)case may be, dated as titles to all titled properties constituting part of the Closing Date and signed Assets being transferred by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory Seller to Buyer that the Company shall have provided notice and Centerpost, such titles duly executed for transfer to the IRS in accordance with the provisions Buyer or Centerpost, respectively, free and clear of Treasury Regulations Section 1.897-2(h)(2)all Encumbrances except as expressly assumed by Buyer and described on EXHIBIT B;
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedComplete and accurate Disclosure Schedules;
(vi) a certificate To Centerpost, an executed services agreement, in form acceptable to Centerpost in its discretion;
(vii) An executed Intellectual Property Purchase Agreement, in form acceptable to Buyer in its discretion;
(viii) An executed Deed of the Secretary or an Assistant Secretary Restraint of Trade, in form acceptable to Buyer in its discretion;
(or equivalent officerix) To Centerpost and Buyer, such other documents, including certificates of the Seller certifying that attached thereto are true independent legal advice and complete copies of all resolutions adopted appropriate statutory declarations, as may be required by the board of directors of Transaction Agreements, or the Seller authorizing the execution, delivery and performance of this Intellectual Property Purchase Agreement and the Transaction Documents or reasonably requested by Buyer or Centerpost to which the Seller is a party, and the consummation of carry out 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 or thereby; and
(viix) duly executed counterparts To Centerpost and Buyer according to each the terms hereof, possession of the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementAssets.
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause Buyer shall deliver to be delivered to BuyerSeller:
(i) a certificate The amount of the Secretary or an Assistant Secretary One Hundred Seventy Thousand Dollars (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”$170,000) in the form attached hereto as Exhibit D;
(B) of cash, certified funds or wire transferred funds, with the Closing Date Payment by wire transfer of immediately available such funds to the account designated be initiated by the Seller on Annex A; and
(C) duly executed counterparts to each Buyer within twenty-four hours of the Transaction Documents to which Buyer is a partyClosing;
(ii) payAn executed Note, or cause substantially in the form of EXHIBIT D, acceptable to Buyer in its discretion;
(iii) An executed Intellectual Property Purchase Agreement, in form acceptable to Buyer in its discretion;
(iv) An executed Deed of Restraint of Trade, in form acceptable to Buyer in its discretion;
(v) An Assignment Agreement accepting assignment of all Seller's rights under the Contracts and assuming the obligations arising under the Contracts to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made performed after the Closing Date; and
(Bvi) at Such other documents, including officers' certificates, as may be required by the Transaction Agreements, or as reasonably requested by Seller to carry out the transactions contemplated hereby.
(c) At the Closing, Centerpost shall deliver to Seller:
(i) The amount of One Hundred Thousand Dollars ($100,000) in the Estimated Company Indebtedness by form of cash, certified funds or wire transferred funds, with the transfer of immediately available such funds to be initiated by Buyer within twenty-four hours of the Closing;
(ii) An executed services agreement, in form acceptable to Centerpost in its discretion; and
(iii) Such other documents, including officers' certificates, as may be required by the amounts and Transaction Agreements, or as reasonably requested by Seller to carry out the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Scheduletransactions contemplated hereby.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sento Technical Innovations Corp)
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, the Seller will deliver, or cause to be delivered, to Buyer:
(i) a stock certificate evidencing The Seller will deliver to the SharesBuyer:
(1) certificates representing the Purchased Interests, duly endorsed in blank for transfer (or accompanied by duly executed stock powers or other Equity Interest powers in form and substance reasonably acceptable to the Buyer), customary instruments of assignment in respect of any Purchased Interests that are not certificated and such other additional assignment and assumption agreements as shall be necessary to effect the transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoof the Purchased Interests as reasonably requested by the Buyer;
(ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companies;
(iii2) each of the deliverables contemplated by Section 2.5(a);
(iv) certification from the Company in accordance with Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated as of the Closing Date and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Seller authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents Document to which the Seller is a party, and executed by 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; andSeller;
(vii3) duly executed counterparts the certificates referred to each of in Sections 6.01, 6.02 and 6.08, in form and substance reasonably acceptable to the Transaction Documents to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.Buyer;
(b) At the Closing, the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyer:
(i4) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors Seller, dated as of the Company authorizing Closing Date, with respect to the executionincumbency of corporate officers of the Seller and their signatures, delivery and performance the corporate good standing of this Agreement the Seller, the Organization Documents of the Seller and the Transaction Documents to which the Company is a party, corporate director and the consummation stockholder resolutions 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; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective Seller authorizing the transactions contemplated by this AgreementAgreement and the other Transaction Documents, in form and substance reasonably acceptable to the Buyer;
(5) a certificate of the Secretary (or other applicable officer) of each Applicable Entity, with respect to corporate or other applicable good standing of such Applicable Entity to the extent good standing is a recognized concept in the applicable jurisdiction where the Applicable Entity is organized and the Organization Documents of such Applicable Entity, in form and substance reasonably acceptable to the Buyer; and
(6) each other document reasonably requested by the Buyer to be delivered at the Closing by the Seller or any of the Applicable Entities.
(cii) The Buyer will:
(i) at the Closing, deliver, or cause to be delivered, will deliver to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B1) the Closing Date Payment Cash Proceeds in the manner set forth in Section 2.03(c);
(2) each other Transaction Document to which the Buyer is a party, executed by wire transfer of immediately available funds the Buyer;
(3) the certificates referred to in Sections 7.01 and 7.02, in form and substance reasonably acceptable to the account designated Seller;
(4) a certificate of the Secretary of the Buyer, dated as of the Closing Date, with respect to the incumbency of corporate officers of the Buyer and their signatures, the corporate good standing of the Buyer, the Organizational Documents of the Buyer and the corporate director resolutions of the Buyer authorizing the transactions contemplated by this Agreement and the Seller on Annex Aother Transaction Documents, in form and substance reasonably acceptable to the Seller; and
(C5) duly executed counterparts to each of other document reasonably requested by the Transaction Documents to which Buyer is a party;
(ii) pay, or cause Seller to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) delivered at the Closing (or if a later due date is applicable with regard to by the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff ScheduleBuyer.
Appears in 1 contract
Closing Deliveries. Subject In addition to any other documents to be delivered under the terms set forth hereinprovisions of this Agreement, at the Closing:
(a) At Seller shall (and the Closing, Shareholders and ▇▇. ▇▇▇▇▇▇ shall cause Seller to) deliver the Seller will deliver, or cause to be delivered, following to Buyer, all of which shall be in form and substance reasonably satisfactory to Buyer and its counsel:
(i) a stock certificate evidencing One or more bills of sale for all of the SharesAcquired Assets that are items of tangible personal property, substantially in the form attached hereto as Exhibit 2.8(a)(i), duly endorsed in blank or accompanied executed by stock powers or other instruments Seller (the “▇▇▇▇ of transfer duly executed in blank, with all required stock transfer tax stamps affixed theretoSale”);
(ii) written letters An assignment of resignation, effective as of the Closing, from each of the members of the board of directors all of the Acquired CompaniesAssets that are items of intangible property (other than the Intellectual Property Assets), including the Assumed Contracts, substantially in the form attached hereto as Exhibit 2.8(a)(ii), duly executed by Seller (the “Assignment and Assumption Agreement”);
(iii) each Assignments by Seller of all Intellectual Property Assets, in proper form for recordation with respect to the deliverables contemplated registered Intellectual Property Assets with the United States Patent and Trademark Office, or other appropriate office, duly executed by Section 2.5(a)Seller;
(iv) certification Such other deeds, bills of sale, assignments, certificates of title, documents, and other instruments of transfer and conveyance as may reasonably be requested by Buyer;
(v) Copies of Seller’s articles of incorporation and by-laws, each as amended to date, and certified as to accuracy by an officer of Seller;
(vi) A Certificate of Existence for Seller from the Company Oregon Secretary of State and from each jurisdiction in accordance with Treasury Regulations Sections 1.1445-2(c)(3which it is qualified to do business, each dated no more than ten days prior to the Closing Date;
(vii) and 1.897-2(h)A certificate of a duly authorized officer of Seller, to be dated as of the Closing Date and signed by an officer of the CompanyDate, certifying that (A) the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organized;
(vi) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions duly adopted by the board of directors and each of the Seller Shareholders, authorizing and approving the execution, delivery and performance of this Agreement and the Transaction Documents to which the Seller is a party, and the consummation of the transactions contemplated hereby and therebyhereby, and (B) that all such resolutions are have not been rescinded or modified and remain in full force and effect as of the Closing, and are all (C) to the resolutions adopted incumbency and signatures of the officers of Seller executing this Agreement and any other document executed on behalf of Seller in connection with this Agreement and the transactions contemplated hereby hereby;
(viii) A certificate executed by Seller, each of the Shareholders and thereby▇▇. ▇▇▇▇▇▇ as to the accuracy of their representations and warranties as of the date of this Agreement and as of the Closing Date in accordance with Section 7.1 and as to their compliance with and performance of their covenants and obligations to be performed or complied with at or before the Closing in accordance with Section 7.2;
(ix) An escrow agreement substantially in the form of Exhibit 2.8(a)(ix), executed by Seller, each of the Shareholders and the Escrow Agent (the “Escrow Agreement”);
(x) An affidavit of Seller pursuant to Section 1445(b)(2) of the Code stating, under penalties of perjury, Seller’s United States taxpayer identification number and that Seller is not a foreign person, which affidavit complies with the requirements of Treasury Regulation Section 1.1445-2(b)(2).
(xi) An opinion of ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., dated as of the Closing Date, in form and substance reasonably acceptable to Buyer;
(xii) Releases of all Liens on the Acquired Assets;
(xiii) A Lease Agreement between Buyer and ▇▇▇▇▇-▇▇▇, LLC in the form attached hereto as Exhibit 2.8(a)(xiii) (the “Lease Agreement”), duly executed; and
(viixiv) duly executed counterparts to each Evidence of the Transaction Documents to which termination by Seller of the Seller is a party and such employment of the Hired Active Employees effective as of the Closing;
(xv) Such other documents or instruments as Buyer or its counsel may reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreementrequire.
(b) At Buyer shall deliver the Closingfollowing to Seller, the Company will, all of which shall be in form and the substance reasonably satisfactory to Seller will cause the Company and its Subsidiaries to, deliver, or cause to be delivered to Buyercounsel:
(i) a $30,375,000 by wire transfer to an account specified by Seller in writing, prior to the Closing Date;
(ii) The Escrow Agreement, executed by Buyer and the Escrow Agent, together with the delivery of $3,375,000 to the Escrow Agent thereunder, by wire transfer to an account specified by the Escrow Agent;
(iii) The Assignment and Assumption Agreement, duly executed by Buyer;
(iv) A Certificate of Good Standing for Buyer from the Ohio Secretary of State dated no more than ten days prior to the Closing Date;
(v) A certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer, to be dated as of the Company Closing Date, certifying that attached thereto are true and complete copies of all (A) the resolutions duly adopted by the board of directors of the Company Buyer authorizing and approving the execution, delivery and performance of this Agreement and the Transaction Documents to which the Company is a party, and the consummation of the transactions contemplated hereby and therebyhereby, and (B) that all such resolutions are have not been rescinded or modified and remain in full force and effect as of the Closing, and are all (C) to the resolutions adopted incumbency and signatures of the officers of Buyer executing this Agreement and any other document executed on behalf of Buyer in connection with the transactions contemplated hereby and thereby; and
(ii) duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit Dhereby;
(Bvi) A certificate executed by Buyer as to the accuracy of its representations and warranties as of the date of this Agreement and as of the Closing Date Payment by wire transfer in accordance with Section 8.1 and as to its compliance with and performance of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause its covenants and obligations to be paid, on behalf of the Seller performed or the Acquired Companies, the following:
(A) complied with at or before the Closing (or if a later due date is applicable in accordance with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.Section 8.2;
Appears in 1 contract
Closing Deliveries. Subject to the terms set forth herein:
(a) At the Closing, MW shall deliver the Seller will deliver, or cause following to be delivered, to BuyerNetwork-1:
(i) a stock A certificate evidencing from an authorized executive officer of MW certifying that (1) all representations and warranties set forth in Section 3 hereof are true and correct as of the SharesClosing, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, (2) MW has performed and complied with all covenants, agreements and obligations contained in this Agreement that are required stock transfer tax stamps affixed theretoto be performed and complied with by it on or prior to the Closing and (3) all requisite approvals or waivers required to be obtained by MW in order to consummate the transactions contemplated hereby have been obtained;
(ii) written letters of resignation, effective as of the Closing, from each of the members of the board of directors of the Acquired Companiesa certificate representing Shares;
(iii) each of the deliverables contemplated by Section 2.5(a)executed Conveyance Documents;
(iv) certification from the Company such additional documents or certifications as reasonably requested by Network-1 in accordance with Treasury Regulations Sections 1.1445-2(c)(3) order to vest good and 1.897-2(h)valid title in and to all MW’s right, dated as of the Closing Date title and signed by an officer of the Company, certifying that the Shares are not “United States real property interest” within the meaning of Section 897(c)(1) of the Code interest in and proof reasonably satisfactory to Buyer that the Company shall have provided notice to the IRS in accordance Purchased Assets, free and clear of all Encumbrances other than the Permitted Encumbrances (including, without limitation, any confirmation of prior assignments with respect to the provisions of Treasury Regulations Section 1.897-2(h)(2Patents necessary to perfect title);
(v) a good standing certificate (or its equivalent) for each of the Acquired Companies from the secretary of state or similar Governmental Body of the jurisdiction under the applicable Laws in which each of the Acquired Companies is organizedexecuted Escrow Agreement;
(vi) the executed Registration Rights Agreement;
(vii) An opinion of MW’s counsel in the form attached as Exhibit 7;
(viii) a certificate of the Secretary an authorized officer of MW, attaching and certifying copies of its certificate of formation, company agreement or an Assistant Secretary (or equivalent officer) other governing documents, as applicable, and of the Seller certifying that attached thereto are true and complete copies resolutions of all resolutions adopted by the board of directors of the Seller its sole member, authorizing the execution, delivery and performance of this Agreement Agreement, the Conveyance Documents and each of the Other Transaction Documents to which it is a party and certifying the Seller name, title and true signature of each officer of MW executing this Agreement, the Conveyance Documents and/or each of the Other Transaction Documents to which it is a party;
(ix) terminations and/or satisfactions of engagement letters between MW and B▇▇▇▇, S▇▇▇▇▇▇▇ & Flexner LLP, Finnegan, Henderson, F▇▇▇▇▇▇, ▇▇▇▇▇▇ & Dunner, LLP, A▇▇▇▇▇, R▇▇▇▇▇▇▇▇ & E▇▇▇▇▇▇▇▇, LLP and the consummation C▇▇▇▇▇ & D▇▇▇▇▇ LLP, in form satisfactory to Network-1;
(x) acknowledgments from each of the transactions contemplated hereby Stroock and thereby, and ICK that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby sale of Patents to Network-1 as provided herein there are no further obligations of MW to Stroock or ICK, respectively, with respect to the payment of legal fees and therebyexpenses except for the Permitted Law Firm Encumbrances of Stroock and ICK, in form satisfactory to Network-1;
(xi) the Patent Documentation; and
(viixii) duly executed counterparts to each an assignment of the Transaction Documents Lifestreams Patent License Agreement, in form satisfactory to which the Seller is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementNetwork-1.
(b) At the Closing, Network-1 shall deliver the Company will, and the Seller will cause the Company and its Subsidiaries to, deliver, or cause following to be delivered to BuyerMW:
(i) the Cash Purchase Price, by wire transfer of immediately available funds to an account specified by MW;
(ii) the executed Warrants;
(iii) a certificate from an authorized officer of Network-1 certifying that (1) all representations and warranties set forth in Section 4 hereof are true and correct as of the Closing, (2) Network-1 has performed and complied with all covenants, agreements and obligations contained in this Agreement that are required to be performed and complied with by it on or prior to the Closing and (3) all requisite approvals or waivers required to be obtained by Network-1 in order to consummate the transactions contemplated hereby have been obtained;
(iv) the executed Escrow Agreement;
(v) the executed Registration Rights Agreement;
(vi) the executed Recognition Agreement;
(vii) an opinion of Network-1’s counsel in the form attached hereto as Exhibit 8;
(viii) the executed Conveyance Documents to which it is a party;
(ix) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Network-1, attaching and certifying copies of its Certificate of Incorporation and all amendments thereto, of its By-Laws and all amendments thereto, and of the Company certifying that attached thereto are true and complete copies resolutions of all resolutions adopted by the its board of directors of the Company directors, authorizing the execution, delivery and performance of this Agreement, the Warrants, the Registration Rights Agreement and each of the Other Transaction Documents to which it is a party and certifying the Company name, title and true signature of each officer of Network-1 executing this Agreement, the Warrants, the Registration Rights Agreement and/or each of the Other Transaction Documents to which it is a party, 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; and
(iix) a letter agreement and a joinder to the Lifestreams Agreements duly executed counterparts to each of the Transaction Documents to which the Company or any Company Subsidiary is a party and such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate and make effective the transactions contemplated by this AgreementNetwork-1.
(c) Buyer will:
(i) at the Closing, deliver, or cause to be delivered, to the Seller:
(A) evidence of the purchase by Buyer of an insurance policy (the “Indemnification Insurance Policy”) in the form attached hereto as Exhibit D;
(B) the Closing Date Payment by wire transfer of immediately available funds to the account designated by the Seller on Annex A; and
(C) duly executed counterparts to each of the Transaction Documents to which Buyer is a party;
(ii) pay, or cause to be paid, on behalf of the Seller or the Acquired Companies, the following:
(A) at the Closing (or if a later due date is applicable with regard to the relevant Company Transaction Expense, at such later date), the Company Transaction Expenses by wire transfer of immediately available funds in the amounts and to the payees identified on the Company Transaction Expense Schedule. Buyer shall provide evidence of payment on the Closing Date for the payments which have to be made on such date and within two (2) Business Days after payment is made for payments to be made after the Closing Date; and
(B) at the Closing, the Estimated Company Indebtedness by wire transfer of immediately available funds in the amounts and to the lenders and other holders of Indebtedness identified on the Company Indebtedness Payoff Schedule.
Appears in 1 contract
Sources: Asset Purchase Agreement (Network 1 Security Solutions Inc)