Closing Requirements. At the Closing, each of the parties will take such actions, and execute and deliver to the other party such bills of sale, endorsements, assignments, agreements or other instruments as shall be necessary to vest in Purchaser, good and marketable title to the Purchased Assets sold to Purchaser hereunder, free and clear of all Liens, and for Purchaser to assume the Assumed Liabilities (as defined below) and to deliver to the Seller the consideration to be delivered to the Seller hereunder, and shall otherwise provide the following: (a) The Seller shall have delivered a certification executed by the President of Seller certifying as to the Indebtedness and Transaction Expenses of Seller as of the Closing Date and that all such holders of Indebtedness are being paid off in full pursuant to payoff letters or releases and that all Persons listed on the Accounts Payable List (i) that have not signed Settlement Agreements have been paid in full and (ii) that have signed Settlement Agreements have been paid the full amount set forth in their signed Settlement Agreements. All of the foregoing pay off letters, releases and Settlement Agreements shall be in forms acceptable to Purchaser. (b) All third-party consents, approvals or notices set forth on Schedule 4.11, shall have been obtained or, with respect to notices, delivered. (c) Each of the Seller and Seller Parent shall have delivered to Purchaser a certificate of its President, certifying that (i) the representations and warranties of Seller and Seller Parent contained in this Agreement shall be true and correct in all respects on and as of the Closing Date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct, as the case may be, as of such specified date); (ii) Seller and Seller Parent have duly performed and complied in all material respects with each of the agreements and covenants required by this Agreement and each of the other Related Agreements to be performed or complied with by it prior to or on the Closing Date; provided that with respect to agreements and covenants that are qualified by materiality, Seller shall have performed such agreements and covenants, as so qualified, in all respects, (iii) no Action shall have been commenced against Purchaser or Seller or Seller Parent that would prevent the Closing and no injunction or restraining order has been issued by any Governmental Entity, and is in effect, that restrains or prohibits any transaction contemplated hereby; and (iv) Seller and Seller Parent have complied with Section 3.5(b). (d) Each of Seller and the Seller Parent shall have delivered to Purchaser a certificate of its Secretary, dated as of the Closing Date, in a form reasonably satisfactory to Purchaser, certifying as to (a) its certificate of incorporation and bylaws, as in effect on and as of the Closing Date, (b) the resolutions of its board of directors and stockholders authorizing and approving the execution, delivery and performance by the entity of this Agreement and the other Related Agreements and the transactions contemplated hereby and thereby, and (c) the incumbency of the officers of such entity executing documents executed and delivered in connection herewith. (e) Each of Seller and Seller Parent, as applicable, shall have delivered to the Purchaser executed copies of the Related Agreements. (f) Each of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered non-competition and non-solicitation agreements to Purchaser in forms acceptable to Purchaser, in its sole discretion. (g) The Seller shall have delivered to Purchaser such duly executed instruments of transfer and assignment, including bills of sale and certificates of title, and other forms of agreement referenced in this Agreement as shall be necessary to convey to Purchaser all rights of the Seller in and to the Purchased Assets, subject to the terms hereof, and in forms mutually acceptable to Purchaser and the Seller. Such instruments shall include a ▇▇▇▇ of Sale to be executed by the Seller and delivered to Purchaser at Closing, in a form mutually acceptable to Purchaser and Seller (the “▇▇▇▇ of Sale”). (h) The Seller shall have delivered, in proper form for filing, duly executed releases of all Liens on the Purchased Assets, including a full payoff letter and release from TCA Global Master Credit Fund, L.P. in a form satisfactory to Seller (Seller’s consent not to be unreasonably withheld) and any tax lien waivers. The Seller shall also have delivered to Purchaser copies of the pay-off letters, releases and Settlement Agreements referenced in Section 3.5(a). (i) The Seller shall have delivered to Purchaser a duly executed Intellectual Property Assignment Agreement in a form mutually acceptable to Purchaser and Seller (j) The Seller shall have delivered to Purchaser a duly executed Assignment and Assumption Agreement in the form mutually acceptable to Purchaser and Seller (the “Assignment and Assumption Agreement”). (k) Each of Seller and the Seller Parent shall have delivered certificates of good standing issued as of a recent date by an appropriate official of the state of organization of such entity. (l) Seller shall have delivered tax clearance certificates from the State of Connecticut with respect to corporate tax, sales tax and withholdings. (m) Seller shall have delivered to Purchaser a certification of non-foreign status dated as of the Closing Date and complying with the requirements of Treasury Regulation Section 1.1445-2(b)(2) in a form reasonably acceptable to Purchaser. (n) Purchaser shall have delivered to the Seller a certificate signed by the Secretary of Purchaser setting forth the votes or consents constituting the authorization and approval of the directors of Purchaser of this Agreement and the transactions contemplated hereby. (o) The Seller shall have delivered possession of the Purchased Assets to Purchaser, including all records and documents relating to the Purchased Assets, and shall have assigned or made all intangible Purchased Assets available to Purchaser, including delivering to Purchaser all tangible evidences of know-how included within the Purchased Assets such as all drawings, manuals, spec sheets, training manuals and instruction manuals on the assembly of RSU, TCU and NCU controllers. (p) Seller shall have delivered to Purchaser a fully executed copy of the Assignment, Release and Waiver of Claims Agreement with FEiNA and proof of payment on amounts owed by Seller to FEiNA pursuant to such agreement. (q) Seller shall have delivered to Purchaser a form letter addressed to Persons to which the Seller owes outstanding maintenance or warranty obligations, including the entities identified on Schedule 4.17, which letter notifies such Persons of the sale of the Single Axis Tracker Business to Purchaser, of Seller’s retention of all maintenance and warranty obligations of the Single Axis Tracker Business and of Seller’s change of address. (r) Seller shall have delivered to Buyer’s West Hartford, CT office all written records, files, documentation and correspondence relating to the Purchased Intellectual Property, including correspondence with the USPTO and patent counsel. (s) All conditions to Close set forth in the Side Letter shall have been satisfied.
Appears in 1 contract
Closing Requirements. At Seller, ▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇ and/or Purchaser, as applicable, shall take the following actions ("Closing Requirements") at or prior to the Closing, each of the parties will :
4.2.1. Seller shall take such actions, actions and execute and deliver to the other party Purchaser such bills of sale, certificates of title, endorsements, assignments, agreements or other instruments instruments, with all documentary or transfer taxes applicable thereto duly paid or provided for, as shall be necessary to vest in Purchaser, Purchaser at the Effective Time good and marketable title to the Purchased Assets sold Assets, subject to Purchaser hereunderno liens, free and clear of all Liensencumbrances, and claims, restrictions, security interests, obligations, liabilities or rights in any other party whatsoever, except for Purchaser to assume the Assumed Liabilities (as defined below) and to deliver to the Seller the consideration to be delivered to the Seller hereunder, and shall otherwise provide the following:
(a) The Seller shall have delivered a certification executed by the President of Seller certifying as to the Indebtedness and Transaction Expenses of Seller as of the Closing Date and that all such holders of Indebtedness are being paid off in full pursuant to payoff letters or releases and that all Persons listed on the Accounts Payable List (i) that have not signed Settlement Agreements have been paid in full and (ii) that have signed Settlement Agreements have been paid the full amount set forth in their signed Settlement Agreements. All of the foregoing pay off letters, releases and Settlement Agreements shall be in forms acceptable to PurchaserLiabilities.
(b) All third-party consents, approvals or notices set forth on Schedule 4.11, shall have been obtained or, with respect to notices, delivered.
(c) Each of the 4.2.2. Seller and Seller Parent shall have delivered to Purchaser a certificate certified copy (certified by the Secretary of its PresidentState of Georgia) of Seller's Articles of Incorporation, certifying that (i) the representations including all amendments thereto and warranties of Seller and Seller Parent contained in this Agreement shall be true and correct in all respects on and as of the Closing Date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct, as the case may be, as of such specified date); (ii) Seller and Seller Parent have duly performed and complied in all material respects with each of the agreements and covenants required by this Agreement and each of the other Related Agreements to be performed or complied with by it prior to or on the Closing Date; provided that with respect to agreements and covenants that are qualified by materiality, Seller shall have performed such agreements and covenants, as so qualified, in all respects, (iii) no Action shall have been commenced against Purchaser or Seller or Seller Parent that would prevent the Closing and no injunction or restraining order has been issued by any Governmental Entity, and is in effect, that restrains or prohibits any transaction contemplated hereby; and (iv) Seller and Seller Parent have complied with Section 3.5(b)restatements thereof.
(d) Each of 4.2.3. Seller and the Seller Parent shall have delivered to Purchaser a certificate certified copy (certified by the Secretary or other appropriate officer of its SecretarySeller) of Seller's Bylaws, dated as including all amendments thereto and restatements thereof.
4.2.4. Seller shall have delivered to Purchaser certified copies (certified by the Secretary or other appropriate officer of Seller) of resolutions and/or consents setting forth the authorization and approval of the Closing Date, in a form reasonably satisfactory to Purchaser, certifying as to (a) its certificate Board of incorporation Directors and bylaws, as in effect on and as shareholders of the Closing Date, (b) the resolutions Seller of its board of directors and stockholders authorizing and approving the execution, delivery and performance by the entity of this Agreement and the all other Related Agreements agreements, documents and the transactions pertaining hereto or contemplated hereby and thereby, and (c) the incumbency of the officers of such entity executing documents executed and delivered in connection herewithhereby.
(e) 4.2.5. Each of Seller and Seller ParentSeller, as applicable, shall have delivered to the Purchaser executed copies of the Related Agreements.
(f) Each of ▇▇▇▇▇ ▇▇▇, ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ . ▇▇▇▇▇▇▇ shall have executed and delivered non-competition and non-solicitation agreements to Purchaser the Noncompetition and Confidentiality Agreement (as hereinafter defined and substantially in forms acceptable to Purchaser, in its sole discretionthe form of Exhibit D hereto).
(g) The 4.2.6. Seller and Purchaser shall have executed and delivered to one another such assignment and assumption agreements as either of them shall reasonably request relating to the assignment to and assumption by Purchaser of the Purchased Contracts and the benefits and obligations thereunder. Seller shall have delivered obtained and shall provide to Purchaser such duly executed instruments the written consent of transfer and assignment, including bills any third party or parties required in connection with the assignment of sale and certificates of title, and other forms of agreement referenced in this Agreement as shall be necessary to convey to Purchaser all rights any of the Seller in and to the Purchased Assets, subject to the terms hereof, and in forms mutually acceptable to Purchaser and the Seller. Such instruments shall include a ▇▇▇▇ of Sale to be executed by the Seller and delivered to Purchaser at Closing, in a form mutually acceptable to Purchaser and Seller (the “▇▇▇▇ of Sale”)Contracts.
(h) The Seller shall have delivered, in proper form for filing, duly executed releases of all Liens on the Purchased Assets, including a full payoff letter and release from TCA Global Master Credit Fund, L.P. in a form satisfactory to Seller (Seller’s consent not to be unreasonably withheld) and any tax lien waivers4.2.7. The Seller shall also have delivered to Purchaser copies of the pay-off letters, releases and Settlement Agreements referenced in Section 3.5(a).
(i) The Seller shall have delivered to Purchaser a duly executed Intellectual Property Assignment Agreement in a form mutually acceptable certificate of the Secretary of Seller certifying as to Purchaser the incumbency of officers and Directors of Seller, dated the date hereof.
(j) The 4.2.8. Seller shall have delivered to Purchaser a duly executed Assignment and Assumption Agreement in the form mutually acceptable to Purchaser and Seller (the “Assignment and Assumption Agreement”).
(k) Each of Seller and the Seller Parent shall have delivered certificates of good standing issued as of a recent current date by an appropriate official evidencing the corporate existence of the state of organization of such entitySeller in Georgia.
(l) Seller shall have delivered tax clearance certificates from the State of Connecticut with respect to corporate tax, sales tax and withholdings.
(m) Seller shall have delivered to Purchaser a certification of non-foreign status dated as of the Closing Date and complying with the requirements of Treasury Regulation Section 1.1445-2(b)(2) in a form reasonably acceptable to Purchaser.
(n) 4.2.9. Purchaser shall have delivered to the Seller a certificate signed certified copies (certified by the Secretary or other appropriate officer of Purchaser PMI Administration, Inc., the sole general partner of Purchaser) of resolutions and/or consents setting forth the votes or consents constituting the authorization and approval of the directors Board of Purchaser Directors of PMI Administration, Inc., as the general partner of Purchaser, of the execution, delivery and performance of this Agreement and the all other agreements, documents and transactions pertaining hereto or contemplated hereby.
(o) The 4.2.10. Purchaser shall pay to Seller the cash and deliver to Seller the Notes that constitute the Purchase Price.
4.2.11. Purchaser shall have delivered possession deliver to Seller a signed guaranty of the Purchased Assets PMI with respect to Purchaser, including all records 's obligations under the Notes and documents relating to the Purchased Assets, and shall have assigned or made all intangible Purchased Assets available to Purchaser, including delivering to Purchaser all tangible evidences of know-how included within the Purchased Assets such as all drawings, manuals, spec sheets, training manuals and instruction manuals on the assembly of RSU, TCU and NCU controllers.
(p) Seller shall have delivered to Purchaser a fully executed copy of the Assignment, Release and Waiver of Claims Agreement with FEiNA and proof of payment on amounts owed by Seller to FEiNA pursuant to such agreement.
(q) Seller shall have delivered to Purchaser a form letter addressed to Persons to which the Seller owes outstanding maintenance or warranty obligations, including the entities identified on Schedule 4.17this Agreement, which letter notifies such Persons of the sale of the Single Axis Tracker Business to Purchaser, of Seller’s retention of all maintenance and warranty obligations of the Single Axis Tracker Business and of Seller’s change of address.
(r) Seller guaranty shall have delivered to Buyer’s West Hartford, CT office all written records, files, documentation and correspondence relating to the Purchased Intellectual Property, including correspondence with the USPTO and patent counsel.
(s) All conditions to Close set forth be substantially in the Side Letter shall have been satisfied.form attached hereto as Exhibit C.
Appears in 1 contract
Sources: Asset Purchase Agreement (Personnel Management Inc)
Closing Requirements. A. At the Closing, each of the parties will take such actions, and Seller shall execute and deliver to the other party such bills of sale, endorsements, assignments, agreements or other instruments as shall be necessary to vest in Purchaser, good and marketable title to the Purchased Assets sold to Purchaser hereunder, free and clear of all Liens, and for Purchaser to assume the Assumed Liabilities (as defined below) and to deliver to the Seller the consideration to be delivered to the Seller hereunder, and shall otherwise provide the following:
(a) The Seller shall have delivered a certification executed by the President of Seller certifying as to the Indebtedness and Transaction Expenses of Seller as of the Closing Date and that all such holders of Indebtedness are being paid off in full pursuant to payoff letters or releases and that all Persons listed on the Accounts Payable List (i) that have not signed Settlement Agreements have been paid in full and (ii) that have signed Settlement Agreements have been paid the full amount set forth in their signed Settlement Agreements. All of the foregoing pay off letters, releases and Settlement Agreements shall be in forms acceptable to Purchaser.
(b) All third-party consents, approvals or notices set forth on Schedule 4.11, shall have been obtained or, with respect to notices, delivered.
(c) Each of the Seller and Seller Parent shall have delivered to Purchaser a certificate of its President, certifying that (i) the representations and warranties of Seller and Seller Parent contained in this Agreement shall be true and correct in all respects on and as of the Closing Date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct, as the case may be, as of such specified date); (ii) Seller and Seller Parent have duly performed and complied in all material respects with each of the agreements and covenants required by this Agreement and each of the other Related Agreements to be performed or complied with by it prior to or on the Closing Date; provided that with respect to agreements and covenants that are qualified by materiality, Seller shall have performed such agreements and covenants, as so qualified, in all respects, (iii) no Action shall have been commenced against Purchaser or Seller or Seller Parent that would prevent the Closing and no injunction or restraining order has been issued by any Governmental Entity, and is in effect, that restrains or prohibits any transaction contemplated hereby; and (iv) Seller and Seller Parent have complied with Section 3.5(b).
(d) Each of Seller and the Seller Parent shall have delivered to Purchaser a certificate of its Secretary, dated as of the Closing Date, in a form reasonably satisfactory to Purchaser, certifying as to (a) its certificate of incorporation and bylaws, as in effect on and as of the Closing Date, (b) the resolutions of its board of directors and stockholders authorizing and approving the execution, delivery and performance by the entity of this Agreement and the other Related Agreements and the transactions contemplated hereby and thereby, and (c) the incumbency of the officers of such entity executing documents executed and delivered in connection herewith.
(e) Each of Seller and Seller Parent, as applicable, shall have delivered to the Purchaser executed copies of the Related Agreements.
(f) Each of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered non-competition and non-solicitation agreements to Purchaser in forms acceptable to Purchaser, in its sole discretion.
(g) The Seller shall have delivered to Purchaser such duly executed instruments of transfer and assignment, including bills of sale and certificates of title, and other forms of agreement referenced in this Agreement as shall be necessary to convey to Purchaser all rights of the Seller in and to the Purchased Assets, subject to the terms hereof, and in forms mutually acceptable to Purchaser and the Seller. Such instruments shall include a ▇▇▇▇ of Sale to be executed by the Seller and delivered to Purchaser at Closing, in a form mutually acceptable to Purchaser and Seller (the “▇▇▇▇ of Sale”).
(h) The Seller shall have delivered, in proper form for filing, duly executed releases of all Liens on the Purchased Assets, including a full payoff letter and release from TCA Global Master Credit Fund, L.P. in a form satisfactory to Seller (Seller’s consent not to be unreasonably withheld) and any tax lien waivers. The Seller shall also have delivered to Purchaser copies of the pay-off letters, releases and Settlement Agreements referenced in Section 3.5(a).'s sole cost:
(i) The Seller shall have delivered a bargain and sale deed with covenants against grantors acts as herein provided (hereinafter referred to Purchaser a duly executed Intellectual Property Assignment Agreement in a form mutually acceptable to Purchaser and Selleras the "Deed");
(jii) The Seller shall have delivered to Purchaser a duly executed Assignment and Assumption Agreement in an affidavit of title, the form mutually acceptable and substance of which shall be subject to Purchaser and Seller (the “Assignment and Assumption Agreement”).reasonable approval of the Title Company;
(kiii) Each of Seller and the Seller Parent shall have delivered certificates of good standing issued as of a recent date by an appropriate official of the state of organization of such entity.
(l) Seller shall have delivered tax clearance certificates from the State of Connecticut with respect to corporate tax, sales tax and withholdings.
(m) Seller shall have delivered to Purchaser a certification of non-foreign status in accordance with Section 1445 of the Internal Revenue Code of 1986, as amended;
(iv) Seller's certification that the representations and warranties herein are true and accurate as of the Closing in material respects;
(v) originals of the Due Diligence Documents and all other documents and records relating to the Property as are in the possession of Seller and kept in the normal course of business;
(vi) a bill of sale, dated as of the Closing Date Closing, in form and complying with the requirements of Treasury Regulation Section 1.1445-2(b)(2) in a form reasonably acceptable to Purchaser.
(n) Purchaser shall have delivered to the Seller a certificate signed by the Secretary of Purchaser setting forth the votes or consents constituting the authorization and approval of the directors of Purchaser of this Agreement and the transactions contemplated hereby.
(o) The Seller shall have delivered possession of the Purchased Assets substance satisf▇▇▇▇ry to Purchaser, including conveying all records fixtures to Purchaser free and documents relating clear of any liens, charges or encumbrances;
(vii) keys to the Purchased AssetsProperty (if any);
(viii) a certificate of occupancy for the Property, and shall have assigned or made all intangible Purchased Assets available to Purchaser, including delivering if required by the Borough of South Plainfield;
(ix) an assignment to Purchaser all tangible evidences of know-how included the current lease between Seller and Able Laboratories, Inc.;
(x) an assignment to Purchaser of those service and maintenance agreements relative to the Property which Purchaser has elected in writing to assume, such other agreements to be cancelled by Seller prior to or as of Closing; and
(xi) such other instruments as may be reasonably required by Purchaser's attorney or the Title Company to effectuate the within the Purchased Assets such as all drawings, manuals, spec sheets, training manuals and instruction manuals on the assembly of RSU, TCU and NCU controllerstransaction.
B. At the Closing, Purchaser shall execute and deliver to Seller:
(pi) The Purchase Price in accordance with Paragraph 2 hereof;
(ii) such other documents and/or instruments as may be reasonably required by Seller's attorney or the Title Company to effectuate the within transaction.
C. Seller shall have delivered to Purchaser a fully executed copy deliver drafts of the Assignment, Release and Waiver of Claims Agreement with FEiNA and proof of payment on amounts owed by Seller to FEiNA pursuant to such agreement.
(q) Seller shall have delivered to Purchaser a form letter addressed to Persons to which the Seller owes outstanding maintenance or warranty obligations, including the entities identified on Schedule 4.17, which letter notifies such Persons of the sale of the Single Axis Tracker Business to Purchaser, of Seller’s retention of all maintenance and warranty obligations of the Single Axis Tracker Business and of Seller’s change of address.
(r) Seller shall have delivered to Buyer’s West Hartford, CT office all written records, files, documentation and correspondence relating to the Purchased Intellectual Property, including correspondence with the USPTO and patent counsel.
(s) All conditions to Close closing documents set forth in section A above at least three (3) days prior to the Side Letter shall have been satisfiedClosing Date.
Appears in 1 contract
Closing Requirements. At the Closing, each of the parties will take such actions, and shall execute and deliver such instruments and documents and take such other actions as may, in the reasonable opinion of counsel for each, be required to complete the other party such bills of sale, endorsements, assignments, agreements or other instruments as transactions under this Agreement. The following documents shall have been delivered and the following activities shall be necessary deemed to vest in Purchaser, good and marketable title to have taken place contemporaneously at the Purchased Assets sold to Purchaser hereunder, free and clear of all Liens, and for Purchaser to assume Closing:
a) the Assumed Liabilities (as defined below) and to deliver to the Seller the consideration securities to be delivered pursuant to Subparagraph 2.1 have been delivered to the Seller hereunder, and shall otherwise provide the following:
(a) The Seller shall have delivered a certification executed by the President of Seller certifying as to the Indebtedness and Transaction Expenses of Seller as of the Closing Date and that all such holders of Indebtedness are being paid off in full pursuant to payoff letters respective parties duly endorsed or releases and that all Persons listed on the Accounts Payable List (i) that have not signed Settlement Agreements have been paid in full and (ii) that have signed Settlement Agreements have been paid the full amount set forth in their signed Settlement Agreements. All of the foregoing pay off letters, releases and Settlement Agreements shall be in forms acceptable to Purchaser.
(b) All third-party consents, approvals or notices set forth on Schedule 4.11, shall have been obtained or, with respect to notices, delivered.
(c) Each of the Seller and Seller Parent shall have delivered to Purchaser a certificate of its President, certifying that (i) the representations and warranties of Seller and Seller Parent contained in this Agreement shall be true and correct in all respects on and as of the Closing Date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct, issued as the case may be, as pursuant to Subparagraphs 1.3 and 2.
b) delivery of such specified date); all corporate records of Acquiree, including without limitation, corporate minute books (ii) Seller and Seller Parent have duly performed and complied in all material respects with each which shall contain copies of the agreements Articles of Incorporation and covenants required Bylaws, as amended to the Closing), stock books, stock transfer books, corporate seals, contracts, licenses and sub-licenses, non-disclosure and confidentiality agreements, and such other corporate books and records as may be reasonably requested for review by Acquiror;
c) delivery of the evidence of cancellation of debts and release of liens by the Debt Holders satisfactory to Acquiror pursuant to Subparagraph 1.1 hereof;
d) a certificate of the President of Acquiree to the effect that all representations and warranties of Acquiree made under this Agreement and each of the other Related Agreements to be performed or complied with by it prior to or are reaffirmed on the Closing Date, the same as though originally given to Acquiror on said date as set forth herein;
e) the Subscription Agreements of the Stockholders; provided that with respect to agreements and covenants that are qualified by materiality, Seller shall have performed such agreements and covenants, as so qualified, in all respects, (iii------------------------------------------------------------------------------- f) no Action shall have been commenced against Purchaser a certificate from the West Virginia Secretary of State dated at or Seller or Seller Parent that would prevent about the date of the Closing and no injunction or restraining order has been issued by any Governmental Entity, and to the effect that Acquiree is in effect, that restrains or prohibits any transaction contemplated hereby; and (ivgood standing under the laws of said State;
g) Seller and Seller Parent have complied with Section 3.5(b).copies of resolutions by Acquiree's Board of Directors authorizing this Agreement;
(dh) Each of Seller and the Seller Parent shall have delivered to Purchaser a certificate of its Secretary, dated as the President of Acquiror to the effect that all representations and warranties of Acquiror made under this Agreement are reaffirmed on the Closing Date, the same as though originally given to Acquiree and Stockholders on said date;
i) copies of resolutions by Acquiror's Board of Directors authorizing this Agreement;
j) a certificate from the Secretary of State of Nevada dated at or about the date of Closing to the effect that Acquiror is in a form reasonably satisfactory to Purchasergood standing under the laws of said State;
k) audited financial statements of Acquiree for the year ended June 30, certifying as to (a) its certificate of incorporation 1997, and bylawsunaudited financial statements for the quarter ended September 30, as 1997, meeting the requirements set forth in effect on and as of the Closing Date, (bSubparagraph 4.8; and
l) the resolutions of its board of directors parties hereto have signed and stockholders authorizing delivered such other instruments and approving the executiondocuments, delivery if any, relating to and performance by the entity of this Agreement and the other Related Agreements and effecting the transactions contemplated hereby and thereby, and (c) the incumbency of the officers of such entity executing documents executed and delivered in connection herewithherein.
(e) Each of Seller and Seller Parent, as applicable, shall have delivered to the Purchaser executed copies of the Related Agreements.
(f) Each of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered non-competition and non-solicitation agreements to Purchaser in forms acceptable to Purchaser, in its sole discretion.
(g) The Seller shall have delivered to Purchaser such duly executed instruments of transfer and assignment, including bills of sale and certificates of title, and other forms of agreement referenced in this Agreement as shall be necessary to convey to Purchaser all rights of the Seller in and to the Purchased Assets, subject to the terms hereof, and in forms mutually acceptable to Purchaser and the Seller. Such instruments shall include a ▇▇▇▇ of Sale to be executed by the Seller and delivered to Purchaser at Closing, in a form mutually acceptable to Purchaser and Seller (the “▇▇▇▇ of Sale”).
(h) The Seller shall have delivered, in proper form for filing, duly executed releases of all Liens on the Purchased Assets, including a full payoff letter and release from TCA Global Master Credit Fund, L.P. in a form satisfactory to Seller (Seller’s consent not to be unreasonably withheld) and any tax lien waivers. The Seller shall also have delivered to Purchaser copies of the pay-off letters, releases and Settlement Agreements referenced in Section 3.5(a).
(i) The Seller shall have delivered to Purchaser a duly executed Intellectual Property Assignment Agreement in a form mutually acceptable to Purchaser and Seller
(j) The Seller shall have delivered to Purchaser a duly executed Assignment and Assumption Agreement in the form mutually acceptable to Purchaser and Seller (the “Assignment and Assumption Agreement”).
(k) Each of Seller and the Seller Parent shall have delivered certificates of good standing issued as of a recent date by an appropriate official of the state of organization of such entity.
(l) Seller shall have delivered tax clearance certificates from the State of Connecticut with respect to corporate tax, sales tax and withholdings.
(m) Seller shall have delivered to Purchaser a certification of non-foreign status dated as of the Closing Date and complying with the requirements of Treasury Regulation Section 1.1445-2(b)(2) in a form reasonably acceptable to Purchaser.
(n) Purchaser shall have delivered to the Seller a certificate signed by the Secretary of Purchaser setting forth the votes or consents constituting the authorization and approval of the directors of Purchaser of this Agreement and the transactions contemplated hereby.
(o) The Seller shall have delivered possession of the Purchased Assets to Purchaser, including all records and documents relating to the Purchased Assets, and shall have assigned or made all intangible Purchased Assets available to Purchaser, including delivering to Purchaser all tangible evidences of know-how included within the Purchased Assets such as all drawings, manuals, spec sheets, training manuals and instruction manuals on the assembly of RSU, TCU and NCU controllers.
(p) Seller shall have delivered to Purchaser a fully executed copy of the Assignment, Release and Waiver of Claims Agreement with FEiNA and proof of payment on amounts owed by Seller to FEiNA pursuant to such agreement.
(q) Seller shall have delivered to Purchaser a form letter addressed to Persons to which the Seller owes outstanding maintenance or warranty obligations, including the entities identified on Schedule 4.17, which letter notifies such Persons of the sale of the Single Axis Tracker Business to Purchaser, of Seller’s retention of all maintenance and warranty obligations of the Single Axis Tracker Business and of Seller’s change of address.
(r) Seller shall have delivered to Buyer’s West Hartford, CT office all written records, files, documentation and correspondence relating to the Purchased Intellectual Property, including correspondence with the USPTO and patent counsel.
(s) All conditions to Close set forth in the Side Letter shall have been satisfied.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Integral Technologies Inc /Cn/)
Closing Requirements. At (a) Concurrently with the Closingexecution hereof or on or prior to the date on which the Bank makes the initial Advance hereunder, the Borrower shall cause to be done or provided to the Bank, as the case may be, the following: (1) resolutions of the Board of Directors or validly authorized Executive Committee of the Borrower, certified by the Secretary or an Assistant Secretary of the Borrower, duly authorizing: the borrowing of funds hereunder, and the execution, delivery and performance of this Agreement and the other Financing Documents; and (2) an opinion of counsel for the Borrower satisfactory as to form and substance to the Bank, as to each of the parties will take such actions, and execute and deliver to the other party such bills of sale, endorsements, assignments, agreements or other instruments as shall be necessary to vest in Purchaser, good and marketable title to the Purchased Assets sold to Purchaser hereunder, free and clear of all Liens, and for Purchaser to assume the Assumed Liabilities (as defined below) and to deliver to the Seller the consideration to be delivered to the Seller hereunder, and shall otherwise provide the following:
(a) The Seller shall have delivered a certification executed by the President of Seller certifying as to the Indebtedness and Transaction Expenses of Seller as of the Closing Date and that all such holders of Indebtedness are being paid off in full pursuant to payoff letters or releases and that all Persons listed on the Accounts Payable List (i) that have not signed Settlement Agreements have been paid in full and (ii) that have signed Settlement Agreements have been paid the full amount matters set forth in their signed Settlement Agreements. All of the foregoing pay off lettersSections 2.1, releases 2.2., 2.3, 2.8, 2.9 and Settlement Agreements shall be in forms acceptable to Purchaser2.15(c) and (d).
(b) All third-party consentsOn or before each date on which the Bank makes an Advance hereunder, approvals the Borrower shall cause to be done or notices set forth provided to the Bank, as the case may be, the following: (1) a Loan Request not less than ten (10) Business Days before the date on Schedule 4.11, shall have been obtained or, with respect which the Advance is to notices, delivered.
be made; (c2) Each a certificate executed by the Secretary or an Assistant Secretary of the Seller and Seller Parent shall have delivered to Purchaser a certificate of its PresidentBorrower, certifying that that: (i) the representations and warranties of Seller and Seller Parent the Borrower contained in this Agreement shall be herein remain true and correct in all respects on and as of the Closing Date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct, as the case may be, as of such specified date); (ii) Seller no Event of Default or Default has then occurred hereunder; and Seller Parent have duly performed and complied in all material respects with each of the agreements and covenants required by this Agreement and each of the other Related Agreements to be performed or complied with by it prior to or on the Closing Date; provided that with respect to agreements and covenants that are qualified by materiality, Seller shall have performed such agreements and covenants, as so qualified, in all respects, (iii) no Action default or event which, with the giving of notice, or the lapse of time, or both, would become a default thereunder, has then occurred with respect to the Eligible Loan to which such Advance relates; (3) a Promissory Note in the amount of the Advance, duly executed on behalf of the Borrower; (4) a Notice of Assignment with respect to the Eligible Loan; (5) the original executed documents (including, without limitation, the promissory note endorsed by the Borrower to the order of the Bank) comprising the Eligible Loan to which such Advance relates; (6) with respect to any letter of credit which constitutes a portion of the Collateral, the Borrower shall cause to be executed and delivered an assignment of proceeds of such letter of credit in favor of the Bank as collateral security hereunder; and (7) such documents shall have been commenced against Purchaser or Seller or Seller Parent that would prevent the Closing and no injunction or restraining order has been issued by any Governmental Entitydelivered, and is in effect, that restrains or prohibits any transaction contemplated hereby; and (iv) Seller and Seller Parent have complied with Section 3.5(b).
(d) Each of Seller and the Seller Parent such filings shall have delivered to Purchaser a certificate of its Secretary, dated as of the Closing Date, in a form reasonably satisfactory to Purchaser, certifying as to (a) its certificate of incorporation been made and bylawsother actions taken, as in effect on and as of the Closing Date, (b) the resolutions of its board of directors and stockholders authorizing and approving the execution, delivery and performance reasonably may be required by the entity of this Agreement Bank and its counsel to perfect a valid, first priority security interest granted by the other Related Agreements and the transactions contemplated hereby and thereby, and (c) the incumbency of the officers of such entity executing documents executed and delivered in connection herewith.
(e) Each of Seller and Seller Parent, as applicable, shall have delivered Borrower to the Purchaser executed copies of the Related Agreements.
(f) Each of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered non-competition and non-solicitation agreements to Purchaser in forms acceptable to Purchaser, in its sole discretion.
(g) The Seller shall have delivered to Purchaser such duly executed instruments of transfer and assignment, including bills of sale and certificates of title, and other forms of agreement referenced in this Agreement as shall be necessary to convey to Purchaser all rights of the Seller in and to the Purchased Assets, subject to the terms hereof, and in forms mutually acceptable to Purchaser and the Seller. Such instruments shall include a ▇▇▇▇ of Sale to be executed by the Seller and delivered to Purchaser at Closing, in a form mutually acceptable to Purchaser and Seller (the “▇▇▇▇ of Sale”).
(h) The Seller shall have delivered, in proper form for filing, duly executed releases of all Liens on the Purchased Assets, including a full payoff letter and release from TCA Global Master Credit Fund, L.P. in a form satisfactory to Seller (Seller’s consent not to be unreasonably withheld) and any tax lien waivers. The Seller shall also have delivered to Purchaser copies of the pay-off letters, releases and Settlement Agreements referenced in Section 3.5(a).
(i) The Seller shall have delivered to Purchaser a duly executed Intellectual Property Assignment Agreement in a form mutually acceptable to Purchaser and Seller
(j) The Seller shall have delivered to Purchaser a duly executed Assignment and Assumption Agreement in the form mutually acceptable to Purchaser and Seller (the “Assignment and Assumption Agreement”).
(k) Each of Seller and the Seller Parent shall have delivered certificates of good standing issued as of a recent date by an appropriate official of the state of organization of such entity.
(l) Seller shall have delivered tax clearance certificates from the State of Connecticut Bank with respect to corporate tax, sales tax and withholdingsthe Collateral.
(m) Seller shall have delivered to Purchaser a certification of non-foreign status dated as of the Closing Date and complying with the requirements of Treasury Regulation Section 1.1445-2(b)(2) in a form reasonably acceptable to Purchaser.
(n) Purchaser shall have delivered to the Seller a certificate signed by the Secretary of Purchaser setting forth the votes or consents constituting the authorization and approval of the directors of Purchaser of this Agreement and the transactions contemplated hereby.
(o) The Seller shall have delivered possession of the Purchased Assets to Purchaser, including all records and documents relating to the Purchased Assets, and shall have assigned or made all intangible Purchased Assets available to Purchaser, including delivering to Purchaser all tangible evidences of know-how included within the Purchased Assets such as all drawings, manuals, spec sheets, training manuals and instruction manuals on the assembly of RSU, TCU and NCU controllers.
(p) Seller shall have delivered to Purchaser a fully executed copy of the Assignment, Release and Waiver of Claims Agreement with FEiNA and proof of payment on amounts owed by Seller to FEiNA pursuant to such agreement.
(q) Seller shall have delivered to Purchaser a form letter addressed to Persons to which the Seller owes outstanding maintenance or warranty obligations, including the entities identified on Schedule 4.17, which letter notifies such Persons of the sale of the Single Axis Tracker Business to Purchaser, of Seller’s retention of all maintenance and warranty obligations of the Single Axis Tracker Business and of Seller’s change of address.
(r) Seller shall have delivered to Buyer’s West Hartford, CT office all written records, files, documentation and correspondence relating to the Purchased Intellectual Property, including correspondence with the USPTO and patent counsel.
(s) All conditions to Close set forth in the Side Letter shall have been satisfied.
Appears in 1 contract
Sources: Master Loan and Security Agreement (Oxford Finance Corp)
Closing Requirements. At the Closing, each of the parties will take such actions, and execute and deliver to the other party such bills of sale, endorsements, assignments, agreements or other instruments as following shall be necessary to vest in Purchaser, good and marketable title to the Purchased Assets sold to Purchaser hereunder, free and clear of all Liens, and for Purchaser to assume the Assumed Liabilities (as defined below) and to deliver to the Seller the consideration to be delivered to the Seller hereunder, and shall otherwise provide the followingoccur:
(a) The Seller Purchaser shall have delivered a certification executed (A) pay to Parent (for subsequent distribution by the President of Seller certifying as Parent to the Indebtedness Stock Sellers and Transaction Expenses the Business Sellers, under the sole responsibility of Seller Parent, as set forth in Section 2.1), by wire transfer of immediately available funds to the account designated by Parent on or before the second Business Day prior to the Closing Date, any amount referred to in Article II as payable on the Closing Date, and (B) deliver to Parent the Note;
(b) Subject to the terms and conditions hereof, Parent will cause the respective Stock Sellers and Business Sellers to, and the Purchaser will, consummate the transactions under the various Local Agreements, as set forth on Schedule 8.6(b) hereto, providing for the sale, transfer, assignment or other direct or indirect conveyance of the Transferred Assets and the Transferred Stock to Purchaser, effective as of the Closing Date and that all such holders of Indebtedness are being paid off in full pursuant to payoff letters or releases and that all Persons listed on the Accounts Payable List (i) that have not signed Settlement Agreements have been paid in full and (ii) that have signed Settlement Agreements have been paid the full amount set forth in their signed Settlement Agreements. All of the foregoing pay off letters, releases and Settlement Agreements shall be in forms acceptable to Purchaser.
(b) All third-party consents, approvals or notices set forth on Schedule 4.11, shall have been obtained or, with respect to notices, deliveredDate.
(c) The parties shall execute and cause to be executed the following agreements: – The Transition Services Agreements (as defined in Section 6.11); – The transitional intellectual property license agreement referred to in Section 6.12; – The escrow agreement referred to in Section 6.2(b); and – The agreement relating to Parent’s indemnification of Purchaser for obligations arising under the German pension funds. Each relevant Stock Seller shall deliver or cause to be delivered letters of resignation of the Seller board members and Seller Parent shall have delivered to Purchaser a certificate of its President, certifying that (i) the representations and warranties of Seller and Seller Parent contained in this Agreement shall be true and correct in all respects on and as of the Closing Date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correctauditors or, as the case may be, as the general partner, of such specified date); (ii) Seller and Seller Parent have duly performed and complied each relevant Transferred Subsidiary in all material respects with each of the agreements and covenants required by this Agreement and each of the other Related Agreements to be performed or complied with by it prior to or on the Closing Date; provided that with respect to agreements and covenants that are qualified by materiality, Seller shall have performed such agreements and covenants, as so qualified, in all respects, (iii) no Action shall have been commenced against Purchaser or Seller or Seller Parent that would prevent the Closing and no injunction or restraining order has been issued by any Governmental Entity, and is in effect, that restrains or prohibits any transaction contemplated hereby; and (iv) Seller and Seller Parent have complied accordance with Section 3.5(b).6.10;
(d) Each Business Seller shall deliver, and each Stock Seller shall cause each Transferred Subsidiary to deliver, resolutions of the board of management, supervisory board, board of directors, or obtain a vote of shareholders at a general meeting of such shareholders of such Business Seller or such Transferred Subsidiary acknowledging or approving the transfer of the Transferred Stock and Transferred Assets and the assumption of the Assumed Liabilities, wherever any such acknowledgement or approval is required by law or under the constitutional documents of such Business Seller or Transferred Subsidiary; (f) Parent shall have delivered deliver to the Purchaser a certificate dated the Closing Date attesting the representations and warranties of Parent, for its Secretaryown account or on behalf of the Stock Sellers, dated the Business Sellers or the Transferred Subsidiaries, contained in this Agreement are true and correct in all respects, as of the Closing Date, in a form reasonably satisfactory to Purchaser, certifying as to (a) its certificate of incorporation and bylaws, as in effect on and as time of the Closing Date, (b) the resolutions of its board of directors and stockholders authorizing and approving the execution, delivery and performance by the entity of this Agreement and the other Related Agreements and the transactions contemplated hereby and thereby, and (c) the incumbency of the officers as though made as of such entity executing documents executed and delivered in connection herewithtime.
(e) Each The Purchaser shall deliver to Parent a certificate dated the Closing Date attesting the representations and warranties of Seller the Purchaser contained in this Agreement are true and Seller Parentcorrect in all respects, as applicable, shall have delivered to the Purchaser executed copies of the Related Agreementstime of the Closing as though made as of such time.
(f) Each Parent shall deliver to the Purchaser a certificate dated the Closing Date attesting all of ▇▇▇▇▇ ▇▇▇▇▇▇▇ the obligations and ▇▇▇▇ ▇▇▇▇▇▇▇ covenants of Parent, for its own account or on behalf of the Stock Sellers, the Business Sellers or the Transferred Subsidiaries, (including the Secondary Transfers) required to be performed at or prior to the Closing pursuant to the terms hereof shall have executed and delivered non-competition and non-solicitation agreements to Purchaser been duly performed in forms acceptable to Purchaser, in its sole discretionall material respects.
(g) The Seller Purchaser shall have delivered deliver to Purchaser such duly executed instruments of transfer and assignment, including bills of sale and certificates of title, and other forms of agreement referenced in this Agreement as shall be necessary to convey to Purchaser Parent a certificate dated the Closing Date attesting all rights of the Seller in obligations and covenants of the Purchaser required to be performed at or prior to the Purchased Assets, subject Closing pursuant to the terms hereof, and hereof shall have been duly performed in forms mutually acceptable to Purchaser and the Seller. Such instruments shall include a ▇▇▇▇ of Sale to be executed by the Seller and delivered to Purchaser at Closing, in a form mutually acceptable to Purchaser and Seller (the “▇▇▇▇ of Sale”)all material respects.
(h) The Seller shall have delivered, in proper form for filing, duly executed releases of all Liens All other payments required to be made by a party on the Purchased Assets, Closing Date pursuant to this Agreement or any other agreement signed prior to the Closing Date (including a full payoff letter and release from TCA Global Master Credit Fund, L.P. in a form satisfactory the one referred to Seller (Seller’s consent not to be unreasonably withheld) and any tax lien waivers. The Seller shall also have delivered to Purchaser copies of the pay-off letters, releases and Settlement Agreements referenced in Section 3.5(a6.6 (b) (iii) an the one referred to in Section 6.7 (d).) shall be paid;
(i) The Seller All other documents, instruments and writings required to be delivered by a party at or prior to the Closing Date pursuant to this Agreement shall have be delivered (if not previously delivered) to Purchaser a duly executed Intellectual Property Assignment Agreement the party entitled thereto, including, for the avoidance of doubt, all documents evidencing the satisfaction or waiver of the conditions or requirements set forth in a form mutually acceptable to Purchaser and SellerArticle VIII: and
(j) The Parent will cause each Stock Seller shall have delivered to Purchaser a duly executed Assignment and Assumption Agreement in cause each Transferred Subsidiary to deliver (i) resolutions of its respective board of management, supervisory board or board of directors approving, for purposes of submission to the form mutually acceptable to Purchaser and Seller (statutory auditors, the “Assignment and Assumption Agreement”).
(k) Each of Seller and the Seller Parent shall have delivered certificates of good standing issued as of a recent date by an appropriate official of the state of organization December 31, 2004 financial statements of such entity.
, (lii) Seller shall have delivered tax clearance certificates from the State of Connecticut with respect to corporate tax, sales tax and withholdings.
(m) Seller shall have delivered to Purchaser a certification of non-foreign status dated unaudited financial statements as of the Closing Date and complying with the requirements of Treasury Regulation Section 1.1445-2(b)(2for December 31, 2004 and (iii) in a form reasonably acceptable to Purchaser.
(n) Purchaser shall have delivered to the Seller a certificate signed extent they can be prepared prior to completion of the audit by the Secretary of Purchaser setting forth the votes or consents constituting the authorization and approval statutory auditors, management reports (“rapport de gestion”)(and other documents required for purposes of the directors of Purchaser of this Agreement and the transactions contemplated herebystatutory auditors’ review) on such financial statements.
(o) The Seller shall have delivered possession of the Purchased Assets to Purchaser, including all records and documents relating to the Purchased Assets, and shall have assigned or made all intangible Purchased Assets available to Purchaser, including delivering to Purchaser all tangible evidences of know-how included within the Purchased Assets such as all drawings, manuals, spec sheets, training manuals and instruction manuals on the assembly of RSU, TCU and NCU controllers.
(p) Seller shall have delivered to Purchaser a fully executed copy of the Assignment, Release and Waiver of Claims Agreement with FEiNA and proof of payment on amounts owed by Seller to FEiNA pursuant to such agreement.
(q) Seller shall have delivered to Purchaser a form letter addressed to Persons to which the Seller owes outstanding maintenance or warranty obligations, including the entities identified on Schedule 4.17, which letter notifies such Persons of the sale of the Single Axis Tracker Business to Purchaser, of Seller’s retention of all maintenance and warranty obligations of the Single Axis Tracker Business and of Seller’s change of address.
(r) Seller shall have delivered to Buyer’s West Hartford, CT office all written records, files, documentation and correspondence relating to the Purchased Intellectual Property, including correspondence with the USPTO and patent counsel.
(s) All conditions to Close set forth in the Side Letter shall have been satisfied.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Newell Rubbermaid Inc)
Closing Requirements. At the Closing, each of the parties will take such actions, and execute and deliver (A) Seller agrees to the other party such bills of sale, endorsements, assignments, agreements or other instruments as following closing requirements:
(i) Seller shall be necessary to vest deliver the following closing documents at Closing (unless the delivery thereof shall have been waived by Buyer in Purchaser, good and marketable title to the Purchased Assets sold to Purchaser hereunder, free and clear of all Liens, and for Purchaser to assume the Assumed Liabilities (as defined below) and to deliver to the Seller the consideration to be delivered to the Seller hereunder, and shall otherwise provide the following:writing):
(a) The Seller shall have delivered a certification executed by the President of Seller certifying as to the Indebtedness and Transaction Expenses of Seller as of the Closing Date and that all such holders of Indebtedness are being paid off in full pursuant to payoff letters or releases and that all Persons listed on the Accounts Payable List (i) that have not signed Settlement Agreements have been paid in full and (ii) that have signed Settlement Agreements have been paid the full amount set forth in their signed Settlement Agreements. All of the foregoing pay off letters, releases and Settlement Agreements shall be in forms acceptable to Purchaser.Deed;
(b) All thirdCertificate of Non-party consentsForeign Status, approvals or notices set forth on Schedule 4.11, shall have been obtained or, with respect to notices, delivered.in the form attached hereto as Exhibit C;
(c) Each if appropriate, resolutions of Seller, property executed and approved in accordance with the Seller by-laws of Seller, authorizing the transactions contemplated by this Agreement;
(d) such other documents, instruments and Seller Parent shall have delivered certificates as may be reasonably required by the title company to Purchaser a certificate of its President, certifying that fully effect and consummate the transactions contemplated hereby.
(B) Buyer agrees to the following closing requirements:
(i) At the time of Closing hereunder the representations and warranties of Seller and Seller Parent contained the Buyer described in this Agreement Paragraph 8 hereof shall be true and correct in all material respects on and as there shall have been no material breach or breaches of the Closing Date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct, as the case may be, as of such specified date); same by Buyer.
(ii) Seller and Seller Parent have duly performed and complied in all material respects with each of Buyer shall deliver the agreements and covenants required by this Agreement and each of following items at Closing (unless the other Related Agreements to be performed or complied with by it prior to or on the Closing Date; provided that with respect to agreements and covenants that are qualified by materiality, Seller shall have performed such agreements and covenants, as so qualified, in all respects, (iii) no Action delivery thereof shall have been commenced against Purchaser or waived by Seller or Seller Parent that would prevent the Closing and no injunction or restraining order has been issued by any Governmental Entity, and is in effect, that restrains or prohibits any transaction contemplated hereby; and (iv) Seller and Seller Parent have complied with Section 3.5(b).writing):
(d) Each of Seller and the Seller Parent shall have delivered to Purchaser a certificate of its Secretary, dated as of the Closing Date, in a form reasonably satisfactory to Purchaser, certifying as to (a) its certificate of incorporation the Purchase Price plus or minus prorations and bylaws, as in effect on and as of the Closing Date, any other amounts to be paid by Buyer to Seller hereunder;
(b) the if appropriate, resolutions of its board Buyer, property executed and approved in accordance with the by-laws of directors and stockholders Buyer, authorizing and approving the execution, delivery and performance by the entity of this Agreement and the other Related Agreements and the transactions contemplated hereby and thereby, and by this Agreement;
(c) the incumbency of the officers of such entity executing documents executed and delivered in connection herewith.
(e) Each of Seller and Seller Parentother documents, as applicable, shall have delivered to the Purchaser executed copies of the Related Agreements.
(f) Each of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered non-competition and non-solicitation agreements to Purchaser in forms acceptable to Purchaser, in its sole discretion.
(g) The Seller shall have delivered to Purchaser such duly executed instruments of transfer and assignment, including bills of sale and certificates of title, and other forms of agreement referenced in this Agreement as shall may be necessary to convey to Purchaser all rights of the Seller in and to the Purchased Assets, subject to the terms hereof, and in forms mutually acceptable to Purchaser and the Seller. Such instruments shall include a ▇▇▇▇ of Sale to be executed reasonably required by the Seller title company to fully effect and delivered to Purchaser at Closing, in a form mutually acceptable to Purchaser and Seller (the “▇▇▇▇ of Sale”).
(h) The Seller shall have delivered, in proper form for filing, duly executed releases of all Liens on the Purchased Assets, including a full payoff letter and release from TCA Global Master Credit Fund, L.P. in a form satisfactory to Seller (Seller’s consent not to be unreasonably withheld) and any tax lien waivers. The Seller shall also have delivered to Purchaser copies of the pay-off letters, releases and Settlement Agreements referenced in Section 3.5(a).
(i) The Seller shall have delivered to Purchaser a duly executed Intellectual Property Assignment Agreement in a form mutually acceptable to Purchaser and Seller
(j) The Seller shall have delivered to Purchaser a duly executed Assignment and Assumption Agreement in the form mutually acceptable to Purchaser and Seller (the “Assignment and Assumption Agreement”).
(k) Each of Seller and the Seller Parent shall have delivered certificates of good standing issued as of a recent date by an appropriate official of the state of organization of such entity.
(l) Seller shall have delivered tax clearance certificates from the State of Connecticut with respect to corporate tax, sales tax and withholdings.
(m) Seller shall have delivered to Purchaser a certification of non-foreign status dated as of the Closing Date and complying with the requirements of Treasury Regulation Section 1.1445-2(b)(2) in a form reasonably acceptable to Purchaser.
(n) Purchaser shall have delivered to the Seller a certificate signed by the Secretary of Purchaser setting forth the votes or consents constituting the authorization and approval of the directors of Purchaser of this Agreement and consummate the transactions contemplated hereby.
(oC) The Buyer and Seller shall have delivered possession jointly deliver three (3) copies of the Purchased Assets to Purchaser, including all records and documents relating to the Purchased Assets, and shall have assigned or made all intangible Purchased Assets available to Purchaser, including delivering to Purchaser all tangible evidences of know-how included within the Purchased Assets such as all drawings, manuals, spec sheets, training manuals and instruction manuals on the assembly of RSU, TCU and NCU controllersa Closing Statement at Closing.
(p) Seller shall have delivered to Purchaser a fully executed copy of the Assignment, Release and Waiver of Claims Agreement with FEiNA and proof of payment on amounts owed by Seller to FEiNA pursuant to such agreement.
(q) Seller shall have delivered to Purchaser a form letter addressed to Persons to which the Seller owes outstanding maintenance or warranty obligations, including the entities identified on Schedule 4.17, which letter notifies such Persons of the sale of the Single Axis Tracker Business to Purchaser, of Seller’s retention of all maintenance and warranty obligations of the Single Axis Tracker Business and of Seller’s change of address.
(r) Seller shall have delivered to Buyer’s West Hartford, CT office all written records, files, documentation and correspondence relating to the Purchased Intellectual Property, including correspondence with the USPTO and patent counsel.
(s) All conditions to Close set forth in the Side Letter shall have been satisfied.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Lockhart Caribbean Corp)
Closing Requirements. At the Closing, each of the parties will take such actions, and execute and deliver to the other party such bills of sale, endorsements, assignments, agreements or other instruments as shall be necessary to vest in Purchaser, good and marketable title to the Purchased Assets sold to Purchaser hereunder, free and clear of all Liens, and for Purchaser to assume the Assumed Liabilities (as defined below) and to deliver to the Seller the consideration to be delivered to the Seller hereunder, and shall otherwise provide the following:
(a) The At or prior to closing the Seller shall will sign and deliver or have signed and delivered a certification executed by all deeds, agreements, documents and instruments which the President Purchasers may reasonably require in order to give effect to this agreement and for the purpose of Seller certifying as to conferring upon the Indebtedness and Transaction Expenses of Seller as Purchasers the absolute ownership of the Closing Date Shares purchased thereunder and that all such holders of Indebtedness are being paid off in full pursuant to payoff letters or releases deeds, documents and that all Persons listed on the Accounts Payable List (i) that have not signed Settlement Agreements have been paid in full and (ii) that have signed Settlement Agreements have been paid the full amount set forth in their signed Settlement Agreements. All of the foregoing pay off letters, releases and Settlement Agreements instruments shall be deposited in forms acceptable to Purchaserescrow with the Purchasers' lawyer.
(b) All third-party consentsAt or prior to closing, approvals each Purchaser shall deliver a certified cheque or notices set forth on bank draft for the consideration to be paid by each Purchaser to the Seller pursuant to Schedule 4.11I and, if delivered prior to closing, such cheque shall have been obtained or, be placed in escrow with respect to notices, deliveredthe Purchasers' lawyer.
(c) Each of At closing, if all documents to be delivered pursuant to subsections 6(a) and 6(b) are delivered, then the Seller and Seller Parent shall have delivered to Purchaser a certificate of its President, certifying that (i) the representations and warranties of Seller and Seller Parent contained in this Agreement shall be true and correct in all respects on and as of the Closing Date (unless any such representation certified cheque or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correctbank draft, as the case may be, as shall be released from escrow, if applicable, and deposited, delivered or wired by the Purchasers or the Solicitor for the Purchasers solely according to the written instructions of such specified date); (ii) the Seller signed by the Seller and Seller Parent have duly performed the remaining deeds, documents and complied in all material respects with each of instruments shall be released and delivered to the agreements and covenants required by this Agreement and each of the other Related Agreements to be performed or complied with by it prior to or on the Closing Date; provided that with respect to agreements and covenants that are qualified by materiality, Seller shall have performed such agreements and covenants, as so qualified, in all respects, (iii) no Action shall have been commenced against Purchaser or Seller or Seller Parent that would prevent the Closing and no injunction or restraining order has been issued by any Governmental Entity, and is in effect, that restrains or prohibits any transaction contemplated hereby; and (iv) Seller and Seller Parent have complied with Section 3.5(b)Purchasers.
(d) Each of Seller and Following the Seller Parent shall have delivered to Purchaser a certificate of its Secretary, dated as of the Closing Date, in a form reasonably satisfactory to Purchaser, certifying as to (a) its certificate of incorporation and bylaws, as in effect on and as of the Closing Date, (b) the resolutions of its board of directors and stockholders authorizing and approving the execution, delivery and performance by the entity execution of this Agreement and Agreement, the other Related Agreements and the transactions contemplated hereby and thereby, and (c) the incumbency of the officers of such entity executing documents executed and delivered in connection herewith.
(e) Each of Seller and Seller Parent, as applicable, shall have delivered parties will do or cause to the Purchaser executed copies of the Related Agreements.
(f) Each of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered non-competition and non-solicitation agreements be done anything further that may be required to Purchaser in forms acceptable to Purchaser, in its sole discretion.
(g) The Seller shall have delivered to Purchaser such duly executed instruments of transfer and assignment, including bills of sale and certificates of title, and other forms of agreement referenced in this Agreement as shall be necessary to convey to Purchaser all rights of the Seller in give full effect thereto and to the Purchased Assets, subject to the terms hereof, and in forms mutually acceptable to Purchaser and the Seller. Such instruments shall include a ▇▇▇▇ of Sale to be executed by the Seller and delivered to Purchaser at Closing, in a form mutually acceptable to Purchaser and Seller (the “▇▇▇▇ of Sale”).
(h) The Seller shall have delivered, in proper form for filing, duly executed releases of all Liens on the Purchased Assets, including a full payoff letter and release from TCA Global Master Credit Fund, L.P. in a form satisfactory to Seller (Seller’s consent not to be unreasonably withheld) and any tax lien waivers. The Seller shall also have delivered to Purchaser copies of the pay-off letters, releases and Settlement Agreements referenced in Section 3.5(a).
(i) The Seller shall have delivered to Purchaser a duly executed Intellectual Property Assignment Agreement in a form mutually acceptable to Purchaser and Seller
(j) The Seller shall have delivered to Purchaser a duly executed Assignment and Assumption Agreement in the form mutually acceptable to Purchaser and Seller (the “Assignment and Assumption Agreement”).
(k) Each of Seller and the Seller Parent shall have delivered certificates of good standing issued as of a recent date by an appropriate official of the state of organization of such entity.
(l) Seller shall have delivered tax clearance certificates from the State of Connecticut with respect to corporate tax, sales tax and withholdings.
(m) Seller shall have delivered to Purchaser a certification of non-foreign status dated as of the Closing Date and complying with the requirements of Treasury Regulation Section 1.1445-2(b)(2) in a form reasonably acceptable to Purchaser.
(n) Purchaser shall have delivered to the Seller a certificate signed by the Secretary of Purchaser setting forth the votes or consents constituting the authorization and approval of the directors of Purchaser of this Agreement and the transactions contemplated hereby.
(o) The Seller shall have delivered possession of the Purchased Assets to Purchaser, including all records and documents relating to the Purchased Assets, and shall have assigned or made all intangible Purchased Assets available to Purchaser, including delivering to Purchaser all tangible evidences of know-how included within the Purchased Assets such as all drawings, manuals, spec sheets, training manuals and instruction manuals on the assembly of RSU, TCU and NCU controllers.
(p) Seller shall have delivered to Purchaser a fully executed copy of the Assignment, Release and Waiver of Claims Agreement with FEiNA and proof of payment on amounts owed by Seller to FEiNA pursuant to such agreement.
(q) Seller shall have delivered to Purchaser a form letter addressed to Persons to which the Seller owes outstanding maintenance or warranty obligations, including the entities identified on Schedule 4.17, which letter notifies such Persons of the sale of the Single Axis Tracker Business to Purchaser, of Seller’s retention of all maintenance and warranty obligations of the Single Axis Tracker Business and of Seller’s change of address.
(r) Seller shall have delivered to Buyer’s West Hartford, CT office all written records, files, documentation and correspondence relating Shares to the Purchased Intellectual PropertyPurchasers effected hereunder. If all documents required to be delivered pursuant to this Agreement are not delivered by 3 days following the execution of this Agreement, including correspondence with the USPTO then all documents, cheques, instruments, and patent counseldeeds shall be returned to their respective senders.
(s) All conditions to Close set forth in the Side Letter shall have been satisfied.
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Closing Requirements. At Seller, Hartman and Purchaser shall take the f▇▇▇▇▇▇▇g actions ("Closing Requirements") at or prior to the Closing, each of the parties will :
4.2.1. Seller shall take such actions, actions and execute and deliver to the other party Purchaser such bills of sale, certificates of title, endorsements, assignments, agreements or other instruments instruments, with all documentary or transfer taxes applicable thereto duly paid or provided for, as shall be necessary to vest in Purchaser, Purchaser at the Effective Time good and marketable title to the Purchased Assets sold and to assign to Purchaser hereundersuch leases with respect to real property and other Purchased Contracts as are being assumed by Purchaser in connection herewith, free and clear together with all necessary consents of all Liensthird parties applicable thereto, and subject in each case to no liens, encumbrances, claims, restrictions, security interests, obligations, liabilities or rights in any other party whatsoever except for Purchaser to assume the Assumed Liabilities (as defined below) and to deliver to the Seller the consideration to be delivered to the Seller hereunder, and shall otherwise provide the following:Liabilities.
(a) The 4.2.2. Seller shall have delivered to Purchaser a certification executed certified copy (certified by the President Secretary of State of Florida) of Seller's Articles of Incorporation, including all amendments thereto and restatements thereof.
4.2.3. Seller shall have delivered to Purchaser a certified copy (certified by the Secretary or other appropriate officer of Seller) of Seller's Bylaws, including all amendments thereto and restatements thereof.
4.2.4. Seller shall have delivered to Purchaser certified copies (certified by the Secretary or other appropriate officer of Seller) of resolutions and/or consents setting forth the authorization and approval of the Board of Directors and shareholders of Seller certifying as to the Indebtedness and Transaction Expenses of Seller as of the Closing Date execution, delivery and that performance of this Agreement and all such holders of Indebtedness are being paid off in full pursuant to payoff letters other agreements, documents and transactions pertaining hereto or releases and that all Persons listed on the Accounts Payable List (i) that have not signed Settlement Agreements have been paid in full and (ii) that have signed Settlement Agreements have been paid the full amount set forth in their signed Settlement Agreements. All of the foregoing pay off letters, releases and Settlement Agreements shall be in forms acceptable to Purchasercontemplated hereby.
(b) All third-party consents, approvals or notices set forth on Schedule 4.11, 4.2.5. Seller and Hartman shall have been obtained or, with respect to notices, deliveredexecuted and delive▇▇▇ ▇▇ Purchaser the Noncompetition and Confidentiality Agreement (as hereinafter defined and in the form of Exhibit A hereto).
(c) Each of the 4.2.6. Seller and Seller Parent shall have delivered to Purchaser a certificate of its President, certifying that (i) the representations and warranties Secretary or other appropriate office of Seller and Seller Parent contained in this Agreement shall be true and correct in all respects on and as of dated the Closing Date (unless any such representation or warranty is made only certifying as to the incumbency of a specific dateofficers and Directors of Seller, in which event such representation the accuracy and warranty shall be true and correct, as the case may be, as of such specified date); (ii) Seller and Seller Parent have duly performed and complied in all material respects with each completeness of the agreements Articles of Incorporation and covenants required by this Agreement and each Bylaws of Seller, the other Related Agreements to be performed or complied with by it prior to or on the Closing Date; provided that with respect to agreements and covenants that are qualified by materiality, Seller shall have performed such agreements and covenants, as so qualified, in all respects, (iii) no Action shall have been commenced against Purchaser or Seller or Seller Parent that would prevent the Closing and no injunction or restraining order has been issued by any Governmental Entitycontinuing effectiveness of Seller's authorizing resolutions, and is in effect, that restrains or prohibits any transaction contemplated hereby; such additional matters as are customary for similar transactions and (iv) Seller and Seller Parent have complied with Section 3.5(b)as Purchaser shall reasonably request.
(d) Each of 4.2.7. Seller and the Seller Parent shall have delivered to Purchaser a certificate certificates of its Secretary, dated public officials as of the Closing Date, in a form reasonably satisfactory to Purchaser, certifying as to current date evidencing (a) its certificate the corporate existence of incorporation and bylawscompliance with all reporting requirements by Seller in the State of Florida, as in effect on and as of the Closing Date, (b) Seller's authorization to do business and good standing as a foreign corporation in the Commonwealth of Kentucky.
4.2.8. Purchaser shall have delivered to Seller certified copies (certified by the Secretary or other appropriate officer of PMI Administration, Inc., the sole general partner of Purchaser) of resolutions and/or consents setting forth the authorization and approval of its board the Board of directors and stockholders authorizing and approving Directors of PMI Administration, Inc. as general partner of Purchaser of the execution, delivery and performance by the entity of this Agreement and the all other Related Agreements agreements, documents and the transactions pertaining hereto or contemplated hereby and thereby, and (c) the incumbency of the officers of such entity executing documents executed and delivered in connection herewithhereby.
(e) Each of 4.2.9. Purchaser shall pay the Purchase Price to Seller.
4.2.10. Seller and Seller ParentPurchaser shall mutually execute and deliver such other agreements, as applicableinstruments, shall have delivered to the Purchaser executed copies of the Related Agreements.
(f) Each of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered non-competition and non-solicitation agreements to Purchaser in forms acceptable to Purchaser, in its sole discretion.
(g) The Seller shall have delivered to Purchaser such duly executed instruments of transfer and assignment, including bills of sale and certificates of title, and or other forms of agreement referenced in this Agreement documents as shall be necessary reasonably required or requested to convey to Purchaser all rights of the Seller in and to the Purchased Assets, subject to the terms hereof, and in forms mutually acceptable to Purchaser and the Seller. Such instruments shall include a ▇▇▇▇ of Sale to be executed by the Seller and delivered to Purchaser at Closing, in a form mutually acceptable to Purchaser and Seller (the “▇▇▇▇ of Sale”).
(h) The Seller shall have delivered, in proper form for filing, duly executed releases of all Liens on the Purchased Assets, including a full payoff letter and release from TCA Global Master Credit Fund, L.P. in a form satisfactory to Seller (Seller’s consent not to be unreasonably withheld) and any tax lien waivers. The Seller shall also have delivered to Purchaser copies of the pay-off letters, releases and Settlement Agreements referenced in Section 3.5(a).
(i) The Seller shall have delivered to Purchaser a duly executed Intellectual Property Assignment Agreement in a form mutually acceptable to Purchaser and Seller
(j) The Seller shall have delivered to Purchaser a duly executed Assignment and Assumption Agreement in the form mutually acceptable to Purchaser and Seller (the “Assignment and Assumption Agreement”).
(k) Each of Seller and the Seller Parent shall have delivered certificates of good standing issued as of a recent date by an appropriate official of the state of organization of such entity.
(l) Seller shall have delivered tax clearance certificates from the State of Connecticut with respect to corporate tax, sales tax and withholdings.
(m) Seller shall have delivered to Purchaser a certification of non-foreign status dated as of the Closing Date and complying with the requirements of Treasury Regulation Section 1.1445-2(b)(2) in a form reasonably acceptable to Purchaser.
(n) Purchaser shall have delivered to the Seller a certificate signed by the Secretary of Purchaser setting forth the votes or consents constituting the authorization and approval of the directors of Purchaser of this Agreement and effect the transactions contemplated hereby.
(o) The Seller shall have delivered possession of the Purchased Assets to Purchaser, including all records and documents relating to the Purchased Assets, and shall have assigned or made all intangible Purchased Assets available to Purchaser, including delivering to Purchaser all tangible evidences of know-how included within the Purchased Assets such as all drawings, manuals, spec sheets, training manuals and instruction manuals on the assembly of RSU, TCU and NCU controllers.
(p) Seller shall have delivered to Purchaser a fully executed copy of the Assignment, Release and Waiver of Claims Agreement with FEiNA and proof of payment on amounts owed by Seller to FEiNA pursuant to such agreement.
(q) Seller shall have delivered to Purchaser a form letter addressed to Persons to which the Seller owes outstanding maintenance or warranty obligations, including the entities identified on Schedule 4.17, which letter notifies such Persons of the sale of the Single Axis Tracker Business to Purchaser, of Seller’s retention of all maintenance and warranty obligations of the Single Axis Tracker Business and of Seller’s change of address.
(r) Seller shall have delivered to Buyer’s West Hartford, CT office all written records, files, documentation and correspondence relating to the Purchased Intellectual Property, including correspondence with the USPTO and patent counsel.
(s) All conditions to Close set forth in the Side Letter shall have been satisfied.
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Sources: Asset Purchase Agreement (Personnel Management Inc)