Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Date: (a) There shall not have been instituted or pending or threatened any action, suit or proceeding by or before any court, arbitrator or governmental agency challenging Purchaser's acquisition of the Business Assets or the Business, or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or seeking damages in connection therewith. (b) The representations and warranties of Seller in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and Seller shall have complied with all covenants and agreements and satisfied all conditions to be performed or satisfied by Seller on or prior to the Closing Date. (c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of the transactions contemplated hereby shall have been obtained or expired, as the case may be, including, without limitation, any applicable waiting period under the HSR Act. (d) Purchaser shall have received a certificate of Seller substantially in the form attached hereto as Exhibit 8.1(d). (e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall have received signed offer letters from at least 85% of Employees and Contractors Purchaser desires to hire as employees. (f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f). (g) Seller and Escrow Agent shall each have executed the Escrow Agreement. (h) The Board of Directors of Seller shall have approved this Agreement and the material terms of the transactions contemplated hereby. (i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby. (j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released. (k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser. (l) All Business Assets, including the Business Records, shall be delivered to Purchaser. (m) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts. (n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment. (o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) hereto. (p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto. (q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel. (r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date. (s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended. (t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form satisfactory to Purchaser.
Appears in 2 contracts
Sources: Agreement for Purchase and Sale of Assets (Tier Technologies Inc), Agreement for Purchase and Sale of Assets (Tier Technologies Inc)
Conditions of Purchaser. Notwithstanding any other provision of ----------------------- this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Date, of the following conditions, each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser which may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed waived by Purchaser and delivered to Seller at or prior to the Closing Datein its sole discretion:
(a) There shall not have been instituted or pending or threatened any action, suit or proceeding by or before any court, arbitrator or governmental agency challenging Purchaser's acquisition of the Business Assets or the Business, or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or seeking damages in connection therewith.
(b) The representations and warranties of Seller Sellers contained in this Agreement and in all agreements, documents and instruments executed and delivered pursuant hereto or in connection with the Closing shall be true and correct in all material respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date with the same effect as if made on the Closing Date Date, and Seller Sellers shall have complied with performed in all covenants and material respects the agreements and satisfied all conditions obligations necessary to be performed or satisfied by Seller on or each of them under this Agreement prior to the Closing Date.;
(b) Purchaser shall have received from Sellers a closing certificate dated the Closing Date certifying each of the matters set forth in Section 6.2(a);
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation Purchaser shall have received copies of the transactions contemplated hereby shall have been obtained or expiredArticles of Incorporation and Bylaws as in effect on the Closing Date for the Company and each Subsidiary and the resolutions of the Company's Board of Directors authorizing the execution, as delivery and performance by the case may beCompany of each of the agreements referenced herein to which the Company is a party, including, without limitation, any applicable waiting period under each certified by the HSR Act.Secretary of the Company in a certificate dated the Closing Date;
(d) Purchaser shall have received a certificate of Seller substantially in the form attached hereto as Exhibit 8.1(d).
(e) The Key Employees shall have entered into the Key Employee Contracts, from White and Purchaser shall have received signed offer letters from at least 85% of Employees and Contractors Purchaser desires to hire as employees.
(f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(h) The Board of Directors of Seller shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(m) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for Sellers and the Company, a written opinion dated the Closing Date and addressed to Purchaser, in substantially the form attached as Exhibit F --------- hereto, and including a provision that Purchaser's lenders are able to rely thereon;
(e) Purchaser shall have concluded (through its representatives, accountants, counsel and other experts) an investigation of the business, condition (financial and other), properties, accounting, taxes, insurance, assets, prospects, operations and affairs of the Company and each Subsidiary;
(f) Purchaser shall have completed an environmental investigation of the Real Property, and the results thereof shall be reasonably satisfactory to Purchaser;
(g) The Company shall provide to Purchaser evidence of the release, whether by exercise or extinguishment, of all holders of Options of their rights in connection therewith and all Liens indicated on Schedule 4.9(a); ---------------
(h) Purchaser shall have received (i) an ALTA form of preliminary title report (the "Title Report") for the Real Property issued by ------------ Chicago Title Company and legible copies of all documents of record listed in the Title Report to be paid for by Purchaser and (ii) a survey of the Real Property conforming to the ALTA Minimum Standard Detail Requirements for Land Title Surveys 1997 to be obtained and paid for by Purchaser, and the results thereof shall be reasonably satisfactory to Purchaser in its sole discretion;
(i) Each of the members of the Company's and each of the Subsidiary's Board of Directors and each officer of Company and its Subsidiaries shall have tendered their resignations (to be effective as of the Closing Date) and Purchaser shall have received a copy thereof;
(j) Purchaser shall have received evidence reasonably satisfactory to it in its sole discretion that Sellers have caused the Company and each Subsidiary to cancel the authority of each Person listed on Schedule -------- 4.15 (or as otherwise reasonably requested by Purchaser) to draw checks on or ---- cause any of the bank accounts maintained by the Company or any Subsidiary;
(k) No act, event or condition shall have occurred prior to the date hereof which has had a Material Adverse Effect.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Hines Horticulture Inc), Stock Purchase Agreement (Hines Horticulture Inc)
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There shall not have been be instituted or and pending or threatened any action, suit or proceeding by or Action before any court, arbitrator or governmental agency Governmental Entity (i) challenging Purchaser's the acquisition of the Business Assets or the Business, Shares by Purchaser or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or (ii) seeking damages in connection therewith.to prohibit the direct or indirect ownership or operation by Purchaser of all or a material portion of the business or assets of the Company, or to compel Purchaser or the Company to dispose of or hold separate all or a material portion of the business or assets of the Company or Purchaser;
(b) The representations and warranties of Seller the Shareholder and the Company in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and Seller the Shareholder and the Company shall have complied with all covenants and agreements and satisfied all conditions on the Shareholder's part to be performed or satisfied by Seller on or prior to the Closing Date.;
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of the transactions contemplated hereby Purchaser shall have been obtained or expiredreceived from Blank Rome Comisky & McCauley LLP, counsel for the Shareholder and the Comp▇▇▇, ▇ wri▇▇▇▇ ▇▇▇nion dated the Closing date and addressed to Purchaser, in substantially the form attached as the case may be, including, without limitation, any applicable waiting period under the HSR Act.Exhibit D hereto;
(d) Purchaser shall have received from the President of the Company a certificate of Seller dated the Closing Date in substantially in the form attached hereto as Exhibit 8.1(d).E hereto;
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall have received signed offer letters from at least 85% the Chief Executive Officer of Employees the Shareholder a certificate dated the Closing Date in substantially the form attached as Exhibit F hereto indicating that there are no material misstatements or omissions and Contractors Purchaser desires no Material Adverse Effect has occurred to hire as employees.the Company and its Subsidiaries from that reflected in the Unaudited Interim Financial Statements;
(f) Purchaser shall have received a certificate of the Secretary of the Company in substantially the form attached as Exhibit G hereto;
(g) On or prior to the Final Commitment Date, Purchaser shall have received a written commitment (the "Mezzanine Commitment") reasonably satisfactory to Purchaser from investors or lenders to provide acquisition financing or external mezzanine debt financing of at least $10,000,000;
(h) On or prior to the Final Commitment Date, Purchaser shall have received a written commitment (the "BOA Commitment") reasonably satisfactory to Purchaser from a syndicate of institutional lenders led by Banc of America to provide a line of credit to the Company in an amount of at least $32,000,000;
(i) On or prior to the Closing Date, Purchaser shall have received acquisition financing or external mezzanine debt financing of at least $10,000,000 pursuant to the Mezzanine Commitment;
(j) On or prior to the Closing Date, the Company shall have received a line of credit to the Company in an amount of at least $32,000,000 pursuant to the BOA Commitment;
(k) On or prior to January 20, 2002, Purchaser shall have been reasonably satisfied with the results of its environmental due diligence review of the Company and its Subsidiaries;
(l) On or prior to the Final Commitment Date, the Purchaser shall have not advised the Shareholder that based on its review of the Exhibits and Schedules it has determined not to proceed with the purchase of the Shares;
(m) On or prior to the Final Commitment Date, the Purchaser, shall have received executed Employment Agreements satisfactory to Purchaser, between the Company or a Subsidiary and each of Frank Barbella, Theodore Budzynski, Brent Kopenhaver, Steven San▇'▇ ▇▇▇ ▇▇▇▇▇▇▇ Ashenden G▇▇▇▇▇ & ▇▇;
(▇) Al▇ ▇▇, special counsel to Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(h) The Board of Directors of Seller shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(m) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇re▇ ▇▇ and the sole shareholder of ▇▇ ▇▇▇▇ined ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ shall occur on ▇▇der or the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29Company from third parties, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows including from any Governmental Entity, landlord, bank or other Person, necessary for the two-months then ended.
(t) consummation of the transactions contemplated hereby shall have been obtained. Purchaser shall have received releases from apply at its sole cost and expense for approval under the former shareholders Hart-Scott-Rodino Antitrust Improvements Act, of Seller and 1976, as amende▇ ▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ of the Shares to the extent necessary within ten days following the delivery of the Mezzanine Commitment and the BOA Commitment; and
(o) The Audited Financial Statements do not reflect a material adverse change in the form satisfactory to Purchaserconsolidated financial condition or the consolidated results of operations of the Company and its Subsidiaries from those reflected in the Unaudited Interim Financial Statements.
Appears in 1 contract
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There shall not have been be instituted or and pending or threatened any action, suit or proceeding by or Action before any court, arbitrator or governmental agency Governmental Entity (i) challenging Purchaser's acquisition of the Business Assets or the Business, or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or (ii) seeking damages in connection therewith.to prohibit the direct or indirect ownership or operation by Purchaser of all or a material portion of the Product Line or Assets, or to compel Purchaser or Seller to dispose of or hold separate all or a material portion of the Product Line or Assets of Seller or Purchaser;
(b) The representations and warranties of Seller in this Agreement shall be true and correct in all material respects (or in all respects in the case of any representation or warranty containing any materiality qualification) on and as of the Closing Date with the same effect as if made on the Closing Date Date, except (i) for changes contemplated by this Agreement and (ii) for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of such date) and Seller shall have complied with all covenants and agreements and satisfied all conditions on Seller’s part to be performed or satisfied by Seller on or prior to the Closing Date.;
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of the transactions contemplated hereby Purchaser shall have been obtained or expiredreceived from counsel for Seller, a written opinion dated the Closing Date and addressed to Purchaser, in substantially the form attached as the case may be, including, without limitation, any applicable waiting period under the HSR Act.Exhibit B hereto;
(d) Purchaser shall have received from the President of Seller a certificate dated the Closing Date to the effect that the conditions set forth in Section 7.1(b) have been satisfied and that Seller’s Board of Directors and, if required, the stockholders of Seller substantially in have approved the form attached hereto as Exhibit 8.1(d).Agreement and the transactions contemplated hereby;
(e) The Key Employees Purchaser will have received such bills of sale, assignments, certificates of title and other instruments of transfer (the “Transfer Documents”) duly executed by Seller, in such forms and covering such matters as Purchaser may reasonably request, Transferring the Assets to Purchaser;
(f) Seller shall have entered into the Key Employee Contracts, and delivered to Purchaser shall have received signed offer letters from at least 85% of Employees and Contractors Purchaser desires to hire as employees.
(f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, a written legal opinion dated the Closing Date Non-Competition Agreement in substantially the form attached hereto as Exhibit 8.1(f)C hereto.
(g) Seller and Escrow Agent Purchaser shall each have executed entered into a License Agreement in substantially the Escrow Agreement.form attached as Exhibit D hereto;
(h) The Board of Directors of Seller and Purchaser shall have approved this entered into a Transitional Supply Agreement and in substantially the material terms of the transactions contemplated hereby.form attached as Exhibit E hereto;
(i) Seller's Shareholder Employees identified by Purchaser in Exhibit F hereto shall have approved this Agreement entered into non-solicitation and confidentiality agreements with Purchaser in substantially the material terms of the transactions contemplated hereby.form attached hereto as Exhibit G;
(j) All Lienscorporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, other than Permitted Liensopinions, on any of agreements, instruments, releases and documents referenced herein or incident to the Business Assets transactions contemplated hereby shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments be in form and substance satisfactory to Purchaser.Purchaser and its counsel;
(k) All consents and assignments from third parties, including from any Governmental Entity or other Person, relating to the Contracts or the conduct and operation of the Product Line as currently conducted and operated, shall have been obtained, except where failure to obtain such consent or assignment would not have a Material Adverse Effect;
(l) All Business AssetsNo act, including event or condition shall have occurred after the Business Records, shall be delivered to Purchaser.date hereof which has had or could have a Material Adverse Effect;
(m) Seller and Purchaser shall have received novations of all Client Contracts (entered into a OEM Supply Agreement in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) H hereto.;
(pn) Seller Seller, Purchaser and the Escrow Agent shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of entered into the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.Escrow Agreement; and
(qo) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior Purchaser will have received consents to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory Transfer and releases of claims related to this transaction against Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form satisfactory to Purchaser.& Co.
Appears in 1 contract
Sources: Asset Purchase Agreement (Network Computing Devices Inc)
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There shall not have been be instituted or and pending or threatened any action, suit or proceeding by or Action before any court, arbitrator or governmental agency Governmental Entity (i) challenging Purchaser's acquisition of the Business Assets or the Business, or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or (ii) seeking damages in connection therewith.to prohibit the direct or indirect ownership or operation by Purchaser of all or a material portion of the Business or Assets, or to compel Purchaser or Seller to dispose of or hold separate all or a material portion of the Business or Assets of Seller or Purchaser;
(b) The representations and warranties of Seller in this Agreement shall be true and correct as of the date of this Agreement and shall be true and correct in all material respects (or in all respects in the case of any representation or warranty subject to a materiality qualification) on and as of the Closing Date with the same effect as if made on the Closing Date Date, except for those representations and warranties which address matters only as of a particular date (which shall be true and correct as of such date) and Seller shall have complied with all covenants and agreements and satisfied all conditions on Seller’s part in this Agreement or any Ancillary Agreement to be performed or satisfied by Seller on or prior to the Closing Date., and Seller shall have provided Purchaser with a certificate with respect to the foregoing signed by an authorized officer of Seller;
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of the transactions contemplated hereby Purchaser shall have been obtained or expiredreceived from counsel for Seller, a written opinion dated the Closing Date and addressed to Purchaser, in substantially the form attached as the case may be, including, without limitation, any applicable waiting period under the HSR Act.Exhibit G hereto;
(d) Purchaser shall have received from the President of Seller a certificate dated the Closing Date to the effect that the conditions set forth in Section 6.1(b) have been satisfied and that Seller’s Board of Seller substantially in Directors has approved the form attached hereto as Exhibit 8.1(d).Agreement, the Transfer and the other transactions contemplated hereby;
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall will have received signed offer letters from at least 85% such bills of Employees sale, assignments, certificates of title and Contractors Purchaser desires to hire as employees.
other instruments of transfer (fthe “Transfer Documents”) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to duly executed by Seller, a written legal opinion dated in such forms and covering such matters as Purchaser may reasonably request, Transferring the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(h) The Board of Directors of Seller shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(m) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form satisfactory to Purchaser.;
Appears in 1 contract
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There shall not have been be instituted or and pending or threatened any action, suit or proceeding by or Action before any court, arbitrator or governmental agency Governmental Entity (i) challenging Purchaser's the acquisition of the Business Assets or the Business, Shares by Purchaser or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or (ii) seeking damages in connection therewith.to prohibit the direct or indirect ownership or operation by Purchaser of all or a material portion of the business or assets of the Company, or to compel Purchaser or the Company to dispose of or hold separate all or a material portion of the business or assets of the Company or Purchaser;
(b) The representations and warranties of Seller each of the Shareholders in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and Seller each of the Shareholders shall have complied with all covenants and agreements and satisfied all conditions on such Shareholder' part to be performed or satisfied by Seller on or prior to the Closing Date.;
(c) Any approvalPurchaser shall have received from John A. ▇▇▇▇, consent Esq., counsel for the Shareholders and the Company, a written opinion dated the Closing date and addressed to Purchaser, in substantially the form attached as Exhibit F hereto;
(d) Purchaser shall have received from the President of the Company a certificate dated the Closing Date in substantially the form attached as Exhibit G hereto;
(e) Purchaser shall have received from each Shareholder a certificate dated the Closing Date in substantially the form attached as Exhibit H hereto;
(f) Purchaser shall have received a certificate of the Secretary of the Company in substantially the form attached as Exhibit I hereto;
(g) Each Shareholder shall have entered into a Stock Escrow Agreement substantially in the form attached as Exhibit B; and Noncompetition Agreements with Purchaser and the Company in substantially the form attached as Exhibit D hereto, (collectively, the "Noncompetition Agreements"); John W. ▇ '▇▇▇▇▇▇▇ ▇▇▇ ▇▇vin J▇▇▇ ▇▇▇▇▇ have entered into Employment Agreements substantially in the form attached as Exhibit C; John W. ▇'▇▇▇▇▇▇▇, ▇▇▇▇▇ J▇▇▇, ▇▇▇ ▇oseph ▇▇▇▇▇▇▇ ▇▇▇▇▇ have entered into Vehicle Lease Equipments substantially in the form attached as Exhibit E.
(h) Purchaser shall have concluded (through its representatives, accountants, counsel and other experts) an investigation of the business, condition (financial and other), properties, assets, prospects, operations and affairs of the Company and shall be satisfied, in its sole discretion, with the results thereof;
(i) All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments, releases and documents referenced herein or waiting incident to the transactions contemplated hereby shall be in form and substance satisfactory to Purchaser and its counsel;
(j) Purchaser shall have received reasonable assurances from those employees, if any, of the Company that may be identified by Purchaser in its discretion that they will remain in the employ of the Company for a reasonable period required by of time after the consummation of the transactions contemplated hereby.;
(k) All consents from third parties, including from any governmental agency Governmental Entity, landlord or authority other Person, necessary or material to for the consummation of the transactions contemplated hereby shall have been obtained or expired, as the case may be, including, without limitation, any applicable waiting period under the HSR Act.obtained;
(d) Purchaser shall have received a certificate of Seller substantially in the form attached hereto as Exhibit 8.1(d).
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall have received signed offer letters from at least 85% of Employees and Contractors Purchaser desires to hire as employees.
(f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(hl) The Board of Directors of Seller Purchaser shall have authorized and approved this Agreement and the material terms of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.;
(m) Purchaser All officers and directors of the Company shall have received novations resigned as such, effective of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.Closing;
(n) All necessary consentsNo act, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether event or not required pursuant to the terms of such instruments, to the assignments contemplated hereby condition shall have been obtained notwithstanding Purchaser's right under Section 2.3 occurred after the date hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall which Purchaser determines has had or could have executed and delivered to Purchaser had a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form satisfactory to Purchaser.Material Adverse Effect;
Appears in 1 contract
Sources: Securities Purchase Agreement (U S Plastic Lumber Corp)
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There shall not have been be instituted or and pending or threatened any action, suit or proceeding by or Action before any court, arbitrator or governmental agency Governmental Entity (i) challenging Purchaser's the acquisition of the Business Assets or the Business, Shares by Purchaser or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or (ii) seeking damages in connection therewith.to prohibit the direct or indirect ownership or operation by Purchaser of all or a material portion of the business or assets of the Company, or to compel Purchaser or the Company to dispose of or hold separate all or a material portion of the business or assets of the Company or Purchaser;
(b) The representations and warranties of Seller each of the Management Shareholders in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and Seller each of the Management Shareholders shall have complied with all covenants and agreements and satisfied all conditions on such Management Shareholder's part to be performed or satisfied by Seller on or prior to the Closing Date.;
(c) Any approval, consent The representations and warranties of the Company shall be true and correct in all respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company shall have complied with all covenants and agreements and satisfied all conditions on the Company's part to be performed or waiting period required by any governmental agency satisfied on or authority necessary or material prior to the consummation of the transactions contemplated hereby shall have been obtained or expired, as the case may be, including, without limitation, any applicable waiting period under the HSR Act.Closing Date;
(d) Purchaser shall have received a certificate of Seller substantially in the form attached hereto as Exhibit 8.1(d).
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall have received signed offer letters from at least 85% of Employees and Contractors Purchaser desires to hire as employees.
(f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, special P.C., counsel to Sellerfor the Management Shareholders and the Company, a written legal opinion dated the Closing Date and addressed to Purchaser, in substantially the form attached hereto as Exhibit 8.1(f).8.1(d) hereto;
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(h) The Board of Directors of Seller shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(me) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to President of the terms of such instruments, to Company a certificate dated the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it Closing Date in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o8.1(e) hereto.;
(pf) Seller Purchaser shall have executed, acknowledged before received a notary and delivered to Purchaser an assignment of certificate from the Intangible Assets (Management Shareholders dated the "Assignment of Intangibles") Closing Date in substantially in the form attached as Exhibit 8.1(p8.1(f) hereto.;
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(tg) Purchaser shall have received releases from a certificate of the former shareholders Secretary of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ the Company in substantially the form satisfactory to Purchaser.attached as Exhibit 8.1(g) hereto;
Appears in 1 contract
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Datedate hereof, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There shall not have been be instituted or and pending or threatened any action, suit or proceeding by or Action before any court, arbitrator or governmental agency Governmental Entity (i) challenging Purchaser's acquisition of the Business Assets or the Business, or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or (ii) seeking damages in connection therewith.to prohibit the direct or indirect ownership or operation by Purchaser of all or a material portion of the Business or Assets, or to compel Purchaser or Seller to dispose of or hold separate all or a material portion of the Business or Assets of Seller or Purchaser;
(b) The representations and warranties of Seller in this Agreement shall be true and correct as of the date of this Agreement and shall be true and correct in all material respects (or in all respects in the case of any representation or warranty subject to a materiality qualification) on and as of the Closing Date with the same effect date hereof, except for those representations and warranties which address matters only as if made on the Closing Date of a particular date (which shall be true and correct as of such date) and Seller shall have complied with all covenants and agreements and satisfied all conditions on Seller's part in this Agreement or any Ancillary Agreement to be performed or satisfied by Seller on or prior to the Closing Date.date hereof, and Seller shall have provided Purchaser with a certificate with respect to the foregoing signed by an authorized officer of Seller;
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of the transactions contemplated hereby Purchaser shall have been obtained or expiredreceived from counsel for Seller, a written opinion dated the date hereof and addressed to Purchaser, in substantially the form attached as the case may be, including, without limitation, any applicable waiting period under the HSR Act.Exhibit D hereto;
(d) Purchaser shall have received from the President of Seller a certificate dated the date hereof to the effect that the conditions set forth in Section 6.1(b) have been satisfied and that Seller's Board of Directors and the stockholders of Seller substantially in have approved the form attached hereto as Exhibit 8.1(d).Agreement and the transactions contemplated hereby;
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall will have received signed offer letters from at least 85% such bills of Employees sale, assignments, certificates of title and Contractors other instruments of transfer (the "Transfer Documents") duly executed by Seller, in such forms and covering such matters as Purchaser desires may reasonably request, Transferring the Assets to hire as employees.Purchaser;
(f) Seller and Shareholder shall each have entered into and delivered to Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f)Noncompetition Agreements.
(g) Seller Purchaser shall have concluded (through its representatives, accountants, counsel and Escrow Agent other experts) an investigation of the condition (financial and other), results of operations, properties, assets, prospects and operations of the Business and shall each have executed be satisfied, in its sole discretion, with the Escrow Agreement.results thereof;
(h) The Board of Directors of Seller shall have approved this Agreement All corporate and the material terms of other proceedings and actions taken in connection with the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement hereby and the material terms of all certificates, opinions, agreements, instruments, releases and documents referenced herein or incident to the transactions contemplated hereby.
(j) All Liens, other than Permitted Liens, on any of the Business Assets hereby shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments be in form and substance satisfactory to Purchaser.Purchaser and its counsel;
(i) All consents and assignments from third parties, including from any Governmental Entity or other Person, relating to the Contracts or the conduct and operation of the Business as currently conducted and operated, shall have been obtained;
(j) No act, event or condition shall have occurred after the date hereof which Purchaser determines has had or could have a Material Adverse Effect on the Business or the Assets;
(k) The Board of Directors and stockholders of Seller shall have authorized and approved this Agreement and the transactions contemplated hereby;
(l) All Business AssetsSeller, including Purchaser and the Business Records, shall be delivered to Purchaser.
(m) Purchaser Escrow Agent shall have received novations of all Client Contracts (in entered into the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material ContractsEscrow Agreement.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form satisfactory to Purchaser.
Appears in 1 contract
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There shall not have been be instituted or and pending or threatened any action, suit or proceeding by or Action before any court, arbitrator or governmental agency Governmental Entity (i) challenging Purchaser's acquisition of the Business Assets or the Business, or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or (ii) seeking damages in connection therewith.to prohibit the direct or indirect ownership or operation by Purchaser of all or a material portion of the Business or Assets, or to compel Purchaser or Seller to dispose of or hold separate all or a material portion of the Business or Assets of Seller or Purchaser;
(b) The representations and warranties of Seller in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and Seller shall have complied with all covenants and agreements and satisfied all conditions on Seller's part to be performed or satisfied by Seller on or prior to the Closing Date.;
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of the transactions contemplated hereby Purchaser shall have been obtained or expiredreceived from counsel for Seller, as a written opinion dated the case may beClosing Date and addressed to Purchaser, including, without limitation, any applicable waiting period under the HSR Act.in form and substance satisfactory to Purchaser and its counsel;
(d) Purchaser shall have received from the President of Seller a certificate dated the Closing Date to the effect that the conditions set forth in Section 7.1(b) have been satisfied and that Seller's Board of Directors and the stockholders of Seller substantially in have approved the form attached hereto as Exhibit 8.1(d).Agreement and the transactions contemplated hereby;
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall will have received signed offer letters from at least 85% such bills of Employees sale, assignments, certificates of title and Contractors other instruments of transfer (the "Transfer Documents") duly executed by Seller, in such forms and covering such matters as Purchaser desires may reasonably request, Transferring the Assets to hire as employees.Purchaser;
(f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇concluded (through its representatives, special accountants, counsel to Sellerand other experts) an investigation of the condition (financial and other), a written legal opinion dated results of operations, properties, assets, prospects and operations of the Closing Date Business and shall be satisfied, in its sole discretion, with the form attached hereto as Exhibit 8.1(f).results thereof;
(g) All corporate and other proceedings and actions taken by Seller in connection with the transactions contemplated hereby and Escrow Agent all certificates, opinions, agreements, instruments, releases and documents referenced herein or incident to the transactions contemplated hereby shall each have executed the Escrow Agreement.be in form and substance satisfactory to Purchaser and its counsel;
(h) Purchaser shall have received reasonable assurances from those employees, if any, of Seller identified on Schedule 6.10(a) that they will become employees of Purchaser or an affiliate of Purchaser;
(i) All consents from third parties, including from any Governmental Entity or other Person, relating to the conduct and operation of the Business as currently conducted and operated, shall have been obtained;
(j) The Board of Directors of Seller Purchaser shall have authorized and approved this Agreement and the material terms of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.;
(k) Seller's landlords No act, event or condition shall have consented to Seller's assignment of occurred after the Property Leases to date hereof which Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.determines has had or could have a material adverse effect on the Assets or the Business; and
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(m) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29have entered into an Employment Agreement with Purchaser, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in substantially the form satisfactory to Purchaser.attached as Exhibit C.
Appears in 1 contract
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There shall not have been be instituted or and pending or threatened any action, suit or proceeding by or Action before any court, arbitrator or governmental agency Governmental Entity (i) challenging Purchaser's the acquisition of the Business Assets or the Business, Shares by Purchaser or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or (ii) seeking damages in connection therewith.to prohibit the direct or indirect ownership or operation by Purchaser of all or a material portion of the business or assets of the Company, or to compel Purchaser or the Company to dispose of or hold separate all or a material portion of the business or assets of the Company or Purchaser;
(b) The representations and warranties of Seller each of the Shareholders in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and Seller each of the Shareholders shall have complied with all covenants and agreements and satisfied all conditions on such Shareholder' part to be performed or satisfied by Seller on or prior to the Closing Date.;
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of the transactions contemplated hereby shall have been obtained or expired, as the case may be, including, without limitation, any applicable waiting period under the HSR Act.
(d) Purchaser shall have received a certificate of Seller substantially in the form attached hereto as Exhibit 8.1(d).
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall have received signed offer letters from at least 85% of Employees and Contractors Purchaser desires to hire as employees.
(f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(h) The Board of Directors of Seller shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(m) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇Dwig▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇ ., ▇▇q., counsel for the Shareholders and the Company, a written opinion dated the Closing date and addressed to Purchaser, in substantially the form attached as Exhibit B hereto;
(d) Purchaser shall have received from the President of the Company a certificate dated the Closing Date in substantially the form attached as Exhibit C hereto;
(e) Purchaser shall have received from each Shareholder a certificate dated the Closing Date in substantially the form attached as Exhibit D hereto;
(f) Purchaser shall have received a certificate of the Secretary of the Company in substantially the form attached as Exhibit E hereto;
(g) Each Shareholder shall have entered into a Stockholders' Agreement with Purchaser and the Company in the form attached as Exhibit F hereto, (collectively, the "Stockholders' Agreements");
(h) Each Shareholder shall have executed a Personal Guaranty substantially in the form attached as Exhibit G hereto.
(i) The Company shall have executed a Promissory Note 8uisubstantially in the form of Exhibit H hereto.
(j) Each Shareholder shall have executed a Stockholders Agreement substantially in the form of Exhibit I hereto.
(k) The Board of Directors of the Company shall have executed a Board Resolution substantially in the form of Exhibit J.
(m) Purchaser shall have concluded (through its representatives, accountants, counsel and other experts) an investigation of the business, condition (financial and other), properties, assets, prospects, operations and affairs of the Company and shall be satisfied, in its sole discretion, with the results thereof;
(n) All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments, releases and documents referenced herein or incident to the transactions contemplated hereby shall be in form and substance satisfactory to PurchaserPurchaser and its counsel;
(o) Purchaser shall have received reasonable assurances from those employees, if any, of the Company that may be identified by Purchaser in its discretion that they will remain in the employ of the Company for a reasonable period of time after the consummation of the transactions contemplated hereby.;
(p) All consents from third parties, including from any Governmental Entity, landlord or other Person, necessary for the consummation of the transactions contemplated hereby shall have been obtained;
(q) The Board of Directors of Purchaser shall have authorized and approved this Agreement and the transactions contemplated hereby;
(r) No act, event or condition shall have occurred after the date hereof which Purchaser determines has had or could have had a Material Adverse Effect;
Appears in 1 contract
Sources: Securities Purchase Agreement (U S Plastic Lumber Corp)
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Date:
(a) There shall not have been instituted or pending or threatened any action, suit or proceeding by or before any court, arbitrator or governmental agency challenging Purchaser's acquisition of the Business Assets or the Business, or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or seeking damages in connection therewith.
(b) The representations and warranties of Seller in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and Seller shall have complied with all covenants and agreements and satisfied all conditions to be performed or satisfied by Seller on or prior to the Closing Date.
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of the transactions contemplated hereby shall have been obtained or expired, as the case may be, including, without limitation, any applicable waiting period under the HSR Act.
(d) Purchaser shall have received a certificate of Seller substantially in the form attached hereto as Exhibit 8.1(d).
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall have received signed offer letters from at least 85% of Employees and Contractors Purchaser desires to hire as employees.
(f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f8.1(e).
(gf) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(hg) The Board of Directors of Seller shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(ih) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(ji) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(lj) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(mk) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(nl) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(om) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o8.1(m) hereto.
(pn) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p8.1(n) hereto.
(qo) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(rp) The closing pursuant to that certain the SCA Asset Purchase Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form satisfactory to Purchaser.
Appears in 1 contract
Sources: Agreement for Purchase and Sale of Assets (Tier Technologies Inc)
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, Each Purchaser’s obligation to purchase and pay for the obligations of Notes to be sold to such Purchaser to consummate at the transactions contemplated by this Agreement Note Closing shall be subject to the satisfaction, at satisfaction or prior to the Closing Date, of each waiver by such Purchaser of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateadditional conditions:
(a) There shall not have been instituted or pending or threatened any action, suit or proceeding by or before any court, arbitrator or governmental agency challenging Purchaser's acquisition of the Business Assets or the Business, or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or seeking damages in connection therewith.
(b) The representations and warranties of Seller the Company and the Guarantor, as applicable, contained in this Agreement and the Notation of Guarantee, shall be true and correct in all material respects on (other than representations and warranties that are qualified as of to materiality, Material Adverse Effect, which representations and warranties shall be true and correct in all respects) when made and at the Note Closing Date with the same effect as if made on the Closing Date date thereof (except to the extent that any such representation or warranty expressly relates to a specified earlier date, in which case such representation or warranty shall be true and Seller correct as of such earlier date).
(b) The Company and the Guarantor shall have performed and complied in all material respects with all covenants and agreements and satisfied all conditions contained in this Agreement, the Notes, the Joinder Agreement and the Notation of Guarantee (collectively, the “Notes Documents”) to which it is a party required to be performed or satisfied complied with by Seller on the Company or the Guarantor prior to or at such Note Closing or Joinder Time, as applicable, and after giving effect to the Closing Dateissue and sale of the Notes (and the application of the proceeds thereof), no Default or Event of Default (each as defined in the Global Note) shall have occurred and be continuing.
(c) Any approvalThe Company shall have delivered to such Purchaser an officer’s certificate, consent or waiting period required by any governmental agency or authority necessary or material to dated the consummation date of the transactions contemplated hereby shall Note Closing, certifying that the conditions specified in Sections 2.3(a) and 2.3(b) have been obtained or expiredsatisfied and that there has not occurred any Material Adverse Effect (as defined in the Agreement and Plan of Merger) since December 31, as the case may be, including, without limitation, any applicable waiting period under the HSR Act2020.
(d) Purchaser The Company shall have received delivered to such Purchaser a certificate of Seller substantially its Secretary, dated the date of the Note Closing, certifying as to (i) the resolutions attached thereto and other corporate proceedings relating to the authorization, execution and delivery of this Agreement, (ii) the incumbency of the signatories of the Company, and (iii) such other items as the Purchasers may reasonably require to evidence the identity, authority and capacity of each Responsible Officers (as defined below) authorized to act as a Responsible Officer in connection with the form attached hereto as Exhibit 8.1(d)Notes Documents to which it is a party.
(e) The Key Employees Guarantor shall have entered into delivered to such Purchaser a certificate of an officer, to be effective as of the Key Employee ContractsJoinder Time, certifying as to (i) the resolutions attached thereto and other corporate proceedings relating to the authorization, execution and delivery of the Joinder Agreement and the Notation of Guarantee, (ii) the incumbency of the signatories of the Guarantor, and Purchaser shall have received signed offer letters from at least 85% (iii) such other items as the Purchasers may reasonably require to evidence the identity, authority and capacity of Employees and Contractors Purchaser desires to hire as employeesthe signatories of the Guarantor.
(f) Such Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, a written legal (i) an opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(h) The Board of Directors of Seller shall have approved this Agreement and the material terms date of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(j) All LiensNote Closing from Weil, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(m) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, Gotshal & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, substantially in the forms attached hereto as Schedule 2.3(f) and (ii) an opinion dated as of the sole shareholder date of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Note Closing Datefrom a law firm or attorney reasonably satisfactory to Purchasers with respect to the Guarantor, in a form reasonably satisfactory to Purchasers giving customary opinions regarding the Notation of Guarantee and Joinder Agreement.
(sg) Seller Subject to Section 8.8, the Company shall deliver have paid on or before the Note Closing the reasonable and documented fees, charges and disbursements of the Purchasers’ counsel to Purchaser the extent reflected in a balance sheet statement of Seller as of February 29, 2000 (such counsel rendered to the "Effective Date Balance Sheet") and Company at least one Business Day prior to the related statements of income and cash flows for the two-months then endedNote Closing.
(th) At least five (5) Business Days (as defined in the Agreement and Plan of Merger) prior to the date of the Note Closing, each Purchaser shall have received releases from written instructions signed by the former shareholders chief financial officer, principal accounting officer, treasurer or controller of Seller the Company (a “Senior Financial Officer” and, together with any other officer of the Company with responsibility for the administration of the relevant portion of this Agreement, a “Responsible Officer”) on letterhead of the Company confirming (i) the name and ▇▇▇▇▇▇▇ ▇address of the bank that should receive the purchase price for the Notes, (b) such bank’s ABA number and (c) the account name and number into which the purchase price for the Notes is to be deposited. ▇▇▇▇▇▇▇▇▇▇ Each Purchaser has the right, but not the obligation, upon written notice (which may be by email) to the Company, to elect to deliver a micro deposit (less than $50.00) to the account identified in the form satisfactory written instructions no later than two (2) Business Days prior to the Note Closing. If a Purchaser delivers a micro deposit, a Responsible Officer must verbally verify the receipt and amount of the micro deposit to such Purchaser on a telephone call initiated by such Purchaser prior to the Note Closing. The Company shall not be obligated to return the amount of the micro deposit, nor will the amount of the micro deposit be netted against the Purchaser’s purchase price of the Notes.
(i) There shall have been no amendment, waiver or modification to the Agreement and Plan of Merger following the date hereof that would reasonably be expected to materially and adversely affect the Purchasers without such Purchaser’s prior written consent; provided that the Company may, in its sole discretion, waive the Minimum Cash Condition (as defined in the Agreement and Plan of Merger) and nothing in this Agreement shall give the Purchaser any right to consent to, receive information or otherwise contest such waiver.
(j) Each of the Company and the Purchasers shall have taken all actions necessary to ensure that the Notes are eligible at DTC on the Note Closing (provided such actions shall not result in changes to the economic terms of the Notes).
Appears in 1 contract
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There shall not have been be instituted or and pending or threatened any action, suit or proceeding by or Action before any court, arbitrator or governmental agency Governmental Entity (i) challenging Purchaser's acquisition of the Business Assets or the Business, or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or (ii) seeking damages in connection therewith.to prohibit the direct or indirect ownership or operation by Purchaser of all or a material portion of the business of Acuitrek, or to compel Purchaser or Acuitrek to dispose of or hold separate all or a material portion of the business or assets of Acuitrek or Purchaser;
(b) The representations and warranties of Seller Acuitrek and the Sellers in this Agreement shall be true and correct in all material respects (or in all respects in the case of any representation or warranty containing any materiality qualification) on and as of the Closing Date with the same effect as if made on the Closing Date except (i) for changes contemplated by this Agreement and Seller (ii) for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of such date), and Acuitrek shall have complied with all covenants and agreements and satisfied all conditions on Acuitrek’s part to be performed or satisfied by Seller on or prior to the Closing Date.;
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of the transactions contemplated hereby Purchaser shall have been obtained or expiredreceived from counsel for Acuitrek, a written opinion dated the Closing Date and addressed to Purchaser, in substantially the form attached as the case may be, including, without limitation, any applicable waiting period under the HSR Act.Exhibit A hereto;
(d) Purchaser shall have received from the President of Acuitrek a certificate dated the Closing Date to the effect that the conditions set forth in Section 7.1(b) have been satisfied and that Acuitrek’s Board of Seller substantially in Directors and, if required, the form attached hereto as Exhibit 8.1(d).stockholders of Acuitrek have approved the Agreement and the transactions contemplated hereby;
(e) The Key Employees Purchaser and the Sellers shall have entered into and delivered a Registration Rights Agreement in substantially the Key Employee Contracts, and Purchaser shall have received signed offer letters from at least 85% of Employees and Contractors Purchaser desires to hire form attached as employeesExhibit B hereto.
(f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(h) The Board of Directors of Seller shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(m) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on have entered into an employment agreement in substantially the Closing Date.form attached hereto as Exhibit C.
(sg) Seller All corporate and other proceedings and actions reasonably necessary to be taken in connection with and relevant to the transactions contemplated hereby and all certificates, opinions, agreements, instruments, releases and documents referenced herein shall deliver be in form and substance reasonably satisfactory to Purchaser and its counsel;
(h) All consents and assignments from third parties, including from any Governmental Entity or other Person, relating to the Contracts or the conduct and operation of Acuitrek’s business shall have been obtained, except for any consent required by the Landlord pursuant to Acuitrek’s current office lease;
(i) No act, event or condition shall have occurred after the date hereof which has, had or could have a balance sheet Material Adverse Effect on Acuitrek’s business or the Shares;
(j) Acuitrek and Special District Risk Management Authority (“SDRMA”) shall have entered into an amendment to the Agreement for Design, Development, Installation, Maintenance, and License of Seller Computer Program dated June 11, 2001 and amended and restated as of February 29June 11, 2000 (the "Effective Date Balance Sheet") 2002 in a form agreed to by Purchaser, and the related statements all security interests held by SDRMA with respect to any of income Acuitrek’s assets shall have been removed and cash flows for the two-months then ended.released; and
(tk) Purchaser shall have received releases from the former shareholders completed to its satisfaction its due diligence investigation of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form satisfactory to Purchaser.Acuitrek;
Appears in 1 contract
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There shall not have been be instituted or and pending or threatened any action, suit or proceeding by or Action before any court, arbitrator or governmental agency Governmental Entity (i) challenging Purchaser's the acquisition of the Business Assets or the Business, Shares by Purchaser or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or (ii) seeking damages in connection therewith.to prohibit the direct or indirect ownership or operation by Purchaser of all or a material portion of the business or assets of the Company, or to compel Purchaser or the Company to dispose of or hold separate all or a material portion of the business or assets of the Company or Purchaser;
(b) The representations and warranties of Seller each of the Shareholders in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and Seller each of the Shareholders shall have complied with all covenants and agreements and satisfied all conditions on such Shareholder' part to be performed or satisfied by Seller on or prior to the Closing Date.;
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of the transactions contemplated hereby Purchaser shall have been obtained or expiredreceived from J▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq., counsel for the Shareholders and the Company, a written opinion dated the Closing date and addressed to Purchaser, in substantially the form attached as the case may be, including, without limitation, any applicable waiting period under the HSR Act.Exhibit E hereto;
(d) Purchaser shall have received from the President of the Company a certificate of Seller dated the Closing Date in substantially in the form attached hereto as Exhibit 8.1(d).F hereto;
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall have received signed offer letters from at least 85% of Employees and Contractors Purchaser desires to hire each Shareholder a certificate dated the Closing Date in substantially the form attached as employees.Exhibit G hereto;
(f) Purchaser shall have received a consent from the Board of Directors of the Company in substantially the form attached as Exhibit H hereto;
(g) The individuals as set forth in Exhibit D shall have entered into Noncompetition Agreements with Purchaser and the Company in substantially the form attached as Exhibit D hereto, (collectively, the "Noncompetition Agreements"); and T▇'▇ ▇▇▇▇▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(h) The Board of Directors of Seller shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(m) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇M▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on have entered into Employment Agreements substantially in the Closing Date.form attached as Exhibit C;
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(th) Purchaser shall have received concluded (through its representatives, accountants, counsel and other experts) an investigation of the business, condition (financial and other), properties, assets, prospects, operations and affairs of the Company and shall be satisfied, in its sole discretion, with the results thereof;
(i) All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments, releases from and documents referenced herein or incident to the former shareholders of Seller transactions contemplated hereby shall be in form and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form substance satisfactory to PurchaserPurchaser and its counsel;
(j) All consents from third parties, including from any Governmental Entity, landlord or other Person, necessary for the consummation of the transactions contemplated hereby shall have been obtained;
(k) The Board of Directors of Purchaser shall have authorized and approved this Agreement and the transactions contemplated hereby in a form as attached as Exhibit F;
(l) All officers and directors of the Company shall have resigned as such, effective of the Closing; and
(m) Payment by Purchaser in full of all outstanding Polaris Equipment Co., Inc. invoices to the Company which precede the Closing Date by thirty (30) days or more by wire transfer to the attorney escrow account of General Counsel for the Company.
(n) No act, event or condition shall have occurred after the date hereof which Purchaser determines has had or could have had a Material Adverse Effect;
Appears in 1 contract
Sources: Securities Purchase Agreement (U S Plastic Lumber Corp)
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There shall not have been be instituted or and pending or threatened any action, suit or proceeding by or Action before any court, arbitrator or governmental agency Governmental Entity (i) challenging Purchaser's acquisition of the Business Assets or the Business, or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or (ii) seeking damages in connection therewith.to prohibit the direct or indirect ownership or operation by Purchaser of all or a material portion of the Business or Assets, or to compel Purchaser or Seller to dispose of or hold separate all or a material portion of the Business or Assets of Seller or Purchaser;
(b) The representations and warranties of Seller in this Agreement shall be true and correct as of the date of this Agreement and shall be true and correct in all material respects (or in all respects in the case of any representation or warranty subject to a materiality qualification) on and as of the Closing Date with the same effect as if made on the Closing Date Date, except for those representations and warranties which address matters only as of a particular date (which shall be true and correct as of such date) and Seller shall have complied with all covenants and agreements and satisfied all conditions on Seller's part in this Agreement or any Ancillary Agreement to be performed or satisfied by Seller on or prior to the Closing Date., and Seller shall have provided Purchaser with a certificate with respect to the foregoing signed by an authorized officer of Seller;
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of the transactions contemplated hereby Purchaser shall have been obtained or expiredreceived from counsel for Seller, a written opinion dated the Closing Date and addressed to Purchaser, in substantially the form attached as the case may be, including, without limitation, any applicable waiting period under the HSR Act.Exhibit H hereto;
(d) Purchaser shall have received from the President of Seller a certificate dated the Closing Date to the effect that the conditions set forth in Section 7.1(b) have been satisfied and that Seller's Board of Directors and the stockholders of Seller substantially in have approved the form attached hereto as Exhibit 8.1(d).Agreement and the transactions contemplated hereby;
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall will have received signed offer letters from at least 85% such bills of Employees sale, assignments, certificates of title and Contractors Purchaser desires to hire as employees.
(f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(h) The Board other instruments of Directors of Seller shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(m) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale transfer (the "▇▇▇▇ of SaleTransfer Documents") substantially duly executed by Seller, in such forms and covering such matters as Purchaser may reasonably request, Transferring the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form satisfactory to Purchaser.;
Appears in 1 contract
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There shall not have been be instituted or and pending or threatened any action, suit or proceeding by or Action before any court, arbitrator or governmental agency Governmental Entity (i) challenging Purchaser's the acquisition of the Business Assets or the Business, Shares by Purchaser or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or (ii) seeking damages in connection therewith.to prohibit the direct or indirect ownership or operation by Purchaser of all or a material portion of the business or assets of the Company, or to compel Purchaser or the Company to dispose of or hold separate all or a material portion of the business or assets of the Company or Purchaser;
(b) The representations and warranties of Seller each of the Shareholders in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and Seller each of the Shareholders shall have complied with all covenants and agreements and satisfied all conditions on such Shareholder' part to be performed or satisfied by Seller on or prior to the Closing Date.;
(c) Any approvalPurchaser shall have received from Jere▇▇ ▇▇▇▇,▇▇▇., consent counsel for the Shareholders and the Company, a written opinion dated the Closing date and addressed to Purchaser, in substantially the form attached as Exhibit B hereto;
(d) Purchaser shall have received from the President of the Company a certificate dated the Closing Date in substantially the form attached as Exhibit C hereto;
(e) Purchaser shall have received from each Shareholder a certificate dated the Closing Date in substantially the form attached as Exhibit D hereto;
(f) Purchaser shall have received a certificate of the Secretary of the Company in substantially the form attached as Exhibit E hereto;
(g) The Board of Directors of the Company shall have executed a Board Resolution substantially in the form of Exhibit F.
(h) Purchaser shall have concluded (through its representatives, accountants, counsel and other experts) an investigation of the business, condition (financial and other), properties, assets, prospects, operations and affairs of the Company and shall be satisfied, in its sole discretion, with the results thereof;
(i) All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments, releases and documents referenced herein or waiting incident to the transactions contemplated hereby shall be in form and substance satisfactory to Purchaser and its counsel;
(j) Purchaser shall have received reasonable assurances from those employees, if any, of the Company that may be identified by Purchaser in its discretion that they will remain in the employ of the Company for a reasonable period required by of time after the consummation of the transactions contemplated hereby.;
(k) All consents from third parties, including from any governmental agency Governmental Entity, landlord or authority other Person, necessary or material to for the consummation of the transactions contemplated hereby shall have been obtained or expired, as the case may be, including, without limitation, any applicable waiting period under the HSR Act.obtained;
(d) Purchaser shall have received a certificate of Seller substantially in the form attached hereto as Exhibit 8.1(d).
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall have received signed offer letters from at least 85% of Employees and Contractors Purchaser desires to hire as employees.
(f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(hl) The Board of Directors of Seller Purchaser shall have authorized and approved this Agreement and the material terms transactions contemplated hereby and the President of the transactions contemplated hereby.
(i) Seller's Shareholder Purchaser shall have approved this Agreement and provide a Certificate in the material terms form of the transactions contemplated hereby.
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.Exhibit H hereto;
(m) Purchaser No act, event or condition shall have received novations of all Client Contracts occurred after the date hereof which Purchaser determines has had or could have had a Material Adverse Effect;
(n) Each Shareholder shall have executed an Employment Agreement in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) G hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form satisfactory to Purchaser.;
Appears in 1 contract
Sources: Securities Purchase Agreement (U S Plastic Lumber Corp)
Conditions of Purchaser. Notwithstanding any other provision On the Closing Date, subject to the satisfaction of this Agreementthe following conditions precedent, the obligations Purchaser agrees to assume, accept and purchase all of the Seller’s right, title and interest in, to and under (x) the Amended and Restated Note and (y) all of the Security Documents: all of the conditions set out in the Transaction Agreement shall have been satisfied or waived, in a manner reasonably satisfactory to the Purchaser to consummate (other than those conditions only capable of being satisfied as of the closing of the transactions contemplated by this Agreement shall be subject to in the satisfaction, at Transaction Agreement); on or prior to the Closing Date, the Original Note shall be amended and restated as the Amended and Restated Note and shall have delivered an original certificate for the Amended and Restated Note (in a form satisfactory to the Purchaser) to the Seller and the Seller shall deliver such certificate representing the Amended and Restated Note to the Purchaser or the at the direction of the Purchaser; the Borrower shall, and shall cause each of the following conditions precedent. If other Obligors, to enter into a confirmation of guarantee and security agreement and affirmation of the Successor Secured Party’s status and rights under the Security Documents, in form and substance satisfactory to the Purchaser; receipt of approval for the transactions contemplated herein by the shareholders and board of directors of the Borrower and all other requisite approvals, consents, notifications, filings or other authorizations as the Purchaser terminates this may determine (including, without limitation, any approvals, consents, notifications, filings or other authorizations that may be required pursuant to the Competition Act (Canada)); receipt of approvals from the Toronto Stock Exchange and NASDAQ, satisfactory to the Purchaser and the Borrower; the Purchaser shall be satisfied that (x) any and all financing statements, financing change statements and similar filings relating to the Security Documents have been completed and (y) any and all original collateral previously delivered by the Borrower to the Seller shall have been delivered to the Purchaser; no Material Adverse Effect (as defined in the Transaction Agreement prior shall have occurred in respect of the Borrower; each and every representation and warranty of the Seller shall be true and correct (without giving effect to any limitation or qualification as to “materiality” or “Material Adverse Effect” set forth in such representations and warranties) as of the date when made and as of the Closing Date because any as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such condition is specific date), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not so satisfiedhad and would not be reasonably expected to have a Material Adverse Effect, Purchaser and the Seller shall have no liability hereunder except as otherwise set forth performed, satisfied and complied in Article 9 hereof. Purchaser may unilaterally waive any of all material respects with the following covenants, agreements and conditions precedent required to Purchaser's obligations; providedbe performed, any such waiver shall be effective only if satisfied or complied with by the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Date:
(a) There . The Purchaser shall not have been instituted or pending or threatened any actionreceived a certificate, suit or proceeding duly executed by or before any court, arbitrator or governmental agency challenging Purchaser's acquisition a duly authorized officer of the Business Assets or the BusinessSeller, or otherwise seeking to restrain or prohibit the consummation dated as of the transactions contemplated hereby Closing Date, to the foregoing effect; no Encumbrance shall exist in relation to the Amended and Restated Note or seeking damages in connection therewith.
(b) The representations any of the Security Documents; the outstanding principal amount of the Amended and warranties of Seller in this Agreement shall be true and correct in all material respects on and Restated Note as of the Closing Date with (the same effect “Principal Amount”) shall not be less than $160,000,000; the Seller, as if made on retiring agent and the Closing Date and Seller Purchaser, as successor agent shall have complied with all covenants and agreements and satisfied all conditions to be performed or satisfied by Seller on or prior executed an Agency Transfer Agreement pursuant to the Closing Date.
(c) Any approvalSecurities Purchase Agreement between the Seller and the Borrower dated May 27, consent or waiting period required by any governmental agency or authority necessary or material to 2021 and the consummation Deed of the transactions contemplated hereby shall have been obtained or expiredHypothec dated February 17th, as the case may be, including, without limitation, any applicable waiting period under the HSR Act.
(d) Purchaser shall have received a certificate of Seller substantially in the form attached hereto as Exhibit 8.1(d).
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall have received signed offer letters from at least 85% of Employees and Contractors Purchaser desires to hire as employees.
(f) Purchaser shall have received from 2021 executed before ▇'▇▇▇▇▇ Ashenden Febbraio, notary under number 3987 of his minutes; the Seller, the Purchaser and the Borrower shall have executed a Deed of Substitution of “Fondé de pouvoir” with respect to the Deed of Hypothec dated February 17th, 2021 executed before ▇▇▇▇▇▇ & Febbraio, notary under number 3987 of his minutes; the Seller, the Purchaser and Hexo Operations Inc. shall have executed a Deed of Substitution of “Fondé de pouvoir” with respect to the Deed of Hypothec dated February 17th, 2021 executed before ▇▇▇▇▇▇ Febbraio, special counsel to Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(h) The Board notary under number 3987 of Directors his minutes; receipt of Seller shall have approved this Agreement and the material terms confirmation of the transactions assignments contemplated hereby.
hereunder by the Trustee under the Indenture and acknowledgment that the Amended and Restated Note either (i) Seller's Shareholder continues to be registered as a security under the Indenture or (ii) has been authenticated and delivered pursuant to the Indenture; if required by the Purchaser, TMI Trust Company or the successor thereof, if applicable, shall have approved this Agreement entered into a supplemental indenture pursuant to the Indenture with the Purchaser, in form and substance satisfactory to the Purchaser; and the material terms Purchaser, the Borrower and Bank of Montreal shall have entered into a blocked account agreement in relation to US Dollar Account No. ▇▇▇▇-▇▇▇▇-▇▇▇, in form and substance satisfactory to the Purchaser. The purchase price payable by the Purchaser to the Seller in consideration for the Seller assigning, transferring and selling of all the Seller’s right, title and interest in, to and under: (i) the Amended and Restated Note and (ii) each of the transactions contemplated hereby.
Security Documents to the Purchaser shall be the Principal Amount less the amount equal to 10.8% of the Principal Amount (jthe “Purchase Price”). Payment of the Purchase Price to the Seller shall be satisfied as follows: (a) All Liens$50,000,000 through the issuance of the Purchaser Convertible Note (solely to the extent no unwaived Equity Conditions Failure exists as of the time the Purchaser is required to deliver the Purchaser Convertible Note, other than Permitted Liensa “Purchaser Note Equity Condition Failure”) or otherwise in cash (the “Note Cash Consideration”)), and (b) the remaining amount of the Purchase Price through the issuance of shares of Common Stock (“Shares”), solely to the extent no unwaived Equity Conditions Failure exists as of the time the Purchaser is required to deliver such Shares, or, at the option of the Purchaser, by way of cash consideration (“Share Cash Consideration”, and together with the Note Cash Consideration, the “Cash Consideration”) (or, if no Equity Conditions Failure exists as of the time the Purchaser is required to deliver such applicable Shares, any combination thereof), provided that: to the extent that payment of the Purchase Price is to be satisfied by way of Cash Consideration (whether due to a Purchase Note Equity Conditions Failure or otherwise): (i) 10% of such Cash Consideration shall be payable on the Closing Date and (ii) 90% of such Cash Consideration shall be paid by the Purchaser, at such times and on such days as the Purchaser may determine, within 60 days following the Closing Date; and to the extent no unwaived Equity Conditions Failure exists and the payment of any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented Purchase Price is to Seller's assignment be satisfied by way of the Property Leases issuance of Shares and/or the Purchaser Convertible Note by the Purchaser to Purchaser and the Seller, the number of Shares to be issued by the Purchaser to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, Seller shall be delivered equal to Purchaser.
the quotient of (mi) the amount of the Purchase Price minus the aggregate of $50,000,000 (representing the principal amount of the Purchaser shall have received novations Convertible Note) and the amount of all Client Contracts (in the form of Client Novation Agreementscash consideration paid or payable under paragraph 2(d)(i), Contractor Contracts divided by (in ii) the form of Contractor Novation Agreements) Share Price on the Trading Day immediately preceding the Closing Date (such Shares, the “Closing Shares”). To the extent no unwaived Equity Conditions Failure exists and the Purchaser wishes to satisfy any or all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets Purchase Price by the issuance of Shares and/or the Purchaser Convertible Note, it shall notify the Seller of its intention to do so not later than the second (the "Assignment of Intangibles"2nd) substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or Trading Day immediately prior to the Closing Date in connection writing in accordance with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between PurchaserSection 2(b)(i)C and, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
Date (sx) the Purchaser shall issue and deliver the Purchase Convertible Note to the Seller (or its designee) and (y) the Purchaser shall deliver cause its transfer agent, through the Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program, to credit such aggregate number of Closing Shares to the Seller’s (or its designee’s) balance account with DTC through its Deposit/Withdrawal at Custodian system. In respect of the Closing Shares (if any), the Purchase Convertible Note, the Conversion Shares issuable on conversion of the Purchaser a balance sheet of Seller as of February 29, 2000 Convertible Note (without regard to the "Effective Date Balance Sheet"Blocker Limitations) and the related statements of income and cash flows for Top-Up Shares (if any): the two-months then ended.
(t) Purchaser shall have received releases from file with the former shareholders United States Securities and Exchange Commission one or more prospectus supplements under Rule 424(b) to its current Registration Statement on Form S-3 (333-233703) (in either case, the “Registration Statement”) to register the issuance by the Purchaser to the Seller of Seller the Closing Shares and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ the Top-Up Shares (as defined below) and to register the offering, sale and issuance of the Purchaser Convertible Note and the Conversion Shares issuable on conversion or repayment of the Purchaser Convertible Note (without regard to the Blocker Limitations); and Forty-five (45) Trading Days after the issuance of the Closing Shares (the “Top-Up Date”), if the quotient of (x) the Purchase Price (less: (A) any amounts satisfied or to be satisfied in cash; and (B) the form satisfactory to Purchaser.principal amount of the Purchaser Convertible Note), divided by (y) the Top-Up Measuring Price (the “Top-Up Measuring Share Amount”) is a number: greater than the number of Closing Shares issued at the Closing (the difference of (X) the Top-Up Measuring Share Amount, less (Y) the number of Closing Shares issued at the Closing, the “Top-Up Difference”), then:
Appears in 1 contract
Sources: Amending Agreement to Transaction Agreement (Tilray Brands, Inc.)
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Datedate hereof, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There shall not have been be instituted or and pending or threatened any action, suit or proceeding by or Action before any court, arbitrator or governmental agency Governmental Entity (i) challenging Purchaser's acquisition of the Business Assets or the Business, or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or (ii) seeking damages in connection therewith.to prohibit the direct or indirect ownership or operation by Purchaser of all or a material portion of the Business or Assets, or to compel Purchaser or Seller to dispose of or hold separate all or a material portion of the Business or Assets of Seller or Purchaser;
(b) The representations and warranties of Seller in this Agreement shall be true and correct as of the date of this Agreement and shall be true and correct in all material respects (or in all respects in the case of any representation or warranty subject to a materiality qualification) on and as of the Closing Date with the same effect date hereof, except for those representations and warranties which address matters only as if made on the Closing Date of a particular date (which shall be true and correct as of such date) and Seller shall have complied with all covenants and agreements and satisfied all conditions on Seller’s part in this Agreement or any Ancillary Agreement to be performed or satisfied by Seller on or prior to the Closing Date.date hereof, and Seller shall have provided Purchaser with a certificate with respect to the foregoing signed by an authorized officer of Seller;
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of the transactions contemplated hereby shall have been obtained or expired, as the case may be, including, without limitation, any applicable waiting period under the HSR Act.
(d) Purchaser shall have received a certificate of Seller substantially in the form attached hereto as Exhibit 8.1(d).
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall have received signed offer letters from at least 85% of Employees and Contractors Purchaser desires to hire as employees.
(f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, the President of Seller a written legal opinion certificate dated the Closing Date date hereof to the effect that the conditions set forth in the form attached hereto as Exhibit 8.1(f).
(gSection 6.1(b) Seller have been satisfied and Escrow Agent shall each have executed the Escrow Agreement.
(h) The that Seller’s Board of Directors and the stockholders of Seller shall have approved this the Agreement and the material terms of the transactions contemplated hereby.;
(id) Purchaser will have received such bills of sale, assignments, certificates of title and other instruments of transfer (the “Transfer Documents”) duly executed by Seller's Shareholder shall have approved this Agreement , in such forms and covering such matters as Purchaser may reasonably request, Transferring the material terms of the transactions contemplated hereby.Assets to Purchaser;
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(m) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(oe) Seller and Shareholders shall each have executed entered into and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) heretoNoncompetition Agreements.
(pf) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇.▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall occur have provided their written agreement to become employees of Purchaser on the Closing Date.terms contained in Exhibit C.
(sg) All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments, releases and documents referenced herein or incident to the transactions contemplated hereby shall be in form and substance reasonably satisfactory to Purchaser and its counsel;
(h) All consents and assignments from third parties, including from any Governmental Entity or other Person, relating to the Contracts or the conduct and operation of the Business as currently conducted and operated, shall have been obtained;
(i) No act, event or condition shall have occurred after the date hereof which Purchaser determines has had or could have a Material Adverse Effect on the Business or the Assets;
(j) The Board of Directors and stockholders of Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") have authorized and approved this Agreement and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form satisfactory to Purchaser.transactions contemplated hereby;
Appears in 1 contract
Sources: Asset Purchase Agreement (Entertainment Games, Inc.)
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser and Seller to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There shall not have been be instituted or and pending or threatened any action, suit or proceeding by or Action before any court, arbitrator or governmental agency Governmental Entity (i) challenging Purchaser's acquisition of the Business Assets or the Business, or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or (ii) seeking damages in connection therewith.to prohibit the direct or indirect ownership or operation by Purchaser of all or a material portion of the Business or Assets, or to compel Purchaser or Seller to dispose of or hold separate all or a material portion of the Business or Assets of Seller or Purchaser;
(b) The representations and warranties of Seller and Purchaser in this Agreement shall be true and correct as of the date of this Agreement and shall be true and correct in all material respects (or in all respects in the case of any representation or warranty subject to a materiality qualification) on and as of the Closing Date with the same effect as if made on the Closing Date Date, except for those representations and warranties which address matters only as of a particular date (which shall be true and correct as of such date) and Seller and Purchaser shall have complied with all covenants and agreements and satisfied all conditions on Seller's or Purchaser's (as applicable) part in this Agreement or any Ancillary Agreement to be performed or satisfied by Seller on or prior to the Closing Date.
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of the transactions contemplated hereby Purchaser shall have been obtained or expiredreceived from counsel for Seller, a written opinion dated the Closing Date and addressed to Purchaser, in substantially the form attached as the case may be, including, without limitation, any applicable waiting period under the HSR Act.Exhibit F hereto;
(d) Purchaser shall have received from the President of Seller a certificate dated the Closing Date to the effect that the conditions set forth in Section 6.1(b) have been satisfied and that Seller's Board of Directors and the stockholders of Seller substantially in have approved the form attached hereto as Exhibit 8.1(d).Agreement and the transactions contemplated hereby;
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall will have received signed offer letters from at least 85% such bills of Employees sale, assignments, certificates of title and Contractors Purchaser desires to hire as employees.
(f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(h) The Board other instruments of Directors of Seller shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(m) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale transfer (the "▇▇▇▇ of SaleTransfer Documents") substantially duly executed by Seller, in such forms and covering such matters as Purchaser may reasonably request, Transferring the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form satisfactory to Purchaser.;
Appears in 1 contract
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction, at or prior to the Closing DateClosing, of each of the following conditions precedent. If conditions, and if Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Datehereunder:
(a) There shall not have been be instituted or pending or threatened any action, suit or proceeding by or before any court, arbitrator or governmental agency challenging Purchaser's acquisition of the Business Assets or the Business, Business or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or seeking damages in connection therewith.;
(b) The representations and warranties of Seller and Shareholder in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and Seller and Shareholder shall have complied with all covenants and agreements and satisfied all conditions on its or his part to be performed or satisfied by Seller on or prior to the Closing Date.;
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of consummate the transactions contemplated hereby shall have been obtained or expired, as the case may be, including, without limitation, any applicable waiting period under the HSR Act.;
(d) Purchaser shall have received a certificate of Seller substantially in the form attached hereto as Exhibit 8.1(d).Annex C hereto;
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall have received signed offer letters from at least 85% a certificate of Employees and Contractors Purchaser desires to hire the Secretary or any Assistant Secretary of Seller substantially in the form attached as employees.Annex D hereto;
(f) Purchaser shall have received from a certificate of Shareholder substantially in the form attached as Annex E hereto;
(g) Each of Seller and Shareholder shall have entered into a non-competition agreement with Purchaser substantially in the form of Annex F hereto;
(h) Joanne Capria shall have entered into a non-competition agreement wit▇ ▇'▇▇▇▇▇▇▇▇ Ashenden ▇ubstantially in the form of Annex G hereto;
(i) Britt Vatne shall have entered into a non-competition agreement with ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, a written legal opinion dated the Closing Date ubstantially in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(h) The Board of Directors of Seller shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.Annex H hereto;
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(m) Purchaser shall have received novations of all Client Contracts (from Fafinski, Mark & Johnson, P.A., counsel to Seller and Shareholder, a ▇▇▇▇▇▇▇ ▇▇▇▇▇▇n d▇▇▇▇ ▇▇e Closing Date substantially in the form attached as Annex I hereto;
(k) Purchaser shall have concluded (through its representatives, accountants, counsel and other experts) an investigation of Client Novation Agreementsthe Assets and the Business and Seller's condition (financial and other), Contractor Contracts properties, assets, prospects, operations and affairs and shall be satisfied in its sole discretion with the results thereof;
(l) Seller, Shareholder and Purchaser shall have received all consents or waivers from all parties necessary or desirable to vest in Purchaser the form Assets;
(m) All Liens (other than the Permitted Liens) on any of Contractor Novation Agreementsthe Assets (other than for taxes not yet due) and all material Contracts.shall have been released;
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from Purchaser shall be reasonably satisfied that such employees of Seller as Purchaser may determine will remain employees of the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to Business after the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.Closing;
(o) Seller shall have provided to Purchaser assignments of all leases under which Seller leases real property in a form satisfactory to Purchaser and consented to by the respective landlords;
(p) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ General Assignment and Bill of sale (the "▇▇▇▇ of Sale") Sale substantially in the form attached as Exhibit 8.1(o) Annex B hereto.;
(pq) Seller Purchaser, Seller, Shareholder, Novus Print Media Inc. ("NPM") and MIH, Inc. shall have executed, acknowledged before entered into a notary Software Cross-License and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") Support Agreement substantially in the form attached hereto as Exhibit 8.1(p) hereto.Annex J;
(qr) Purchaser and NPM shall have entered into a Trademark Licensing Agreement substantially in the form attached hereto as Annex K;
(s) Purchaser and NPM shall have entered into a Letter Agreement substantially in the form attached hereto as Annex L;
(t) All proceedings taken by Seller and Shareholder and all instruments executed and delivered by Seller or Shareholder on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form satisfactory to Purchaser.
Appears in 1 contract
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to purchase and pay for the Division Assets and assume the Assumed Division Liabilities and to consummate the other transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There No injunction, restraining order or decree of any Governmental Entity shall not have been instituted exist against Purchaser, Seller, the Division or pending or threatened any action, suit or proceeding by or before any court, arbitrator or governmental agency challenging Purchaser's acquisition of the Business Assets principals, officers or the Businessdirectors of any of them, that restrains, prevents or otherwise seeking to restrain or prohibit the consummation of materially changes the transactions contemplated hereby or seeking damages in connection therewith.hereby;
(b) The Stockholder Approval shall have been obtained;
(c) The representations and warranties of Seller in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date (other than representations and warranties qualified as to materiality, which shall be true and correct in all respects) and Seller shall have complied with all covenants and agreements and satisfied all conditions on Seller's part to be performed or satisfied by Seller on or prior to the Closing Date.
(c) Any approval; provided, consent that the failure of a representation and warranty to be true or waiting period required by any governmental agency correct or authority necessary the non-compliance of a covenant or material to the consummation agreement shall not constitute a failure of the transactions contemplated hereby shall have been obtained condition contained in this Section 8.1(c) if such failure or expirednon-compliance is not a material breach of such representation and warranty -41- 50 or covenant or agreement, as the case may beand if such failure or non-compliance, includingboth alone and in conjunction with all other such failures and non-compliances, without limitation, any applicable waiting period under the HSR Act.has not had a Material Adverse Effect;
(d) Purchaser shall have received from Winthrop, Stimson, Putn▇▇ & ▇obe▇▇▇, ▇▇unsel for Seller, a certificate of Seller favorable written opinion dated the Closing Date and addressed to Purchaser in substantially in the form attached hereto as Exhibit Annex 8.1(d).) hereto;
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall have received signed offer letters from at least 85% the Chief Executive Officer or Chief Financial Officer of Employees Seller a certificate dated the Closing Date stating that the requirements of subsections (b), (c) and Contractors Purchaser desires to hire as employees.(l) of this Section 8.1 have been satisfied;
(f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel a certificate of the Secretary of Seller as to certain proceedings of the Board and stockholders of Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f).;
(g) Seller Purchaser shall have received aggregate cash proceeds in an amount equal to the Purchase Price from the issuance and Escrow Agent shall sale by Purchaser of its equity or debt securities and/or from borrowings under senior secured or revolving credit facilities, in each have executed case on terms reasonably satisfactory to Purchaser (the Escrow Agreement."Required Financing");
(h) The Board of Directors of Seller shall have approved this Agreement All corporate and the material terms of other proceedings and actions taken in connection with the transactions contemplated hereby.hereby and all certificates, opinions, agreements, instruments, releases and documents referenced herein or incident to the transactions contemplated hereby shall be in form and substance reasonably satisfactory to Purchaser and its counsel;
(i) Seller's Shareholder Purchaser shall have approved this Agreement received an ALTA extended coverage Owner's policy of title insurance for the Division Owned Real Property with aggregate liability in the amount of $4.0 million, showing title to the Division Owned Real Property including the Division Improvements vested in Purchaser, together with any endorsements as Purchaser may reasonably request, and subject only to the material terms of the transactions contemplated hereby.Permitted Title Matters;
(j) All Liensconsents, waivers, authorizations and approvals from third parties, including from any Governmental Entity, landlord or other than Permitted LiensPerson, set forth on any of the Business Assets Schedule 8.1(j) shall have been released.obtained;
(k) Seller's landlords Seller or any Affiliate of Seller required in connection with the transactions contemplated hereby to file a notification and report form in compliance with the HSR Act shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in filed such form and substance satisfactory the applicable waiting period with respect to Purchaser.each such form (including any extension by reason of a request for additional information) shall have expired or terminated;
(l) All Business AssetsNo act, including event or condition shall have occurred after the Business Recordsdate hereof, shall whether in the Ordinary Course, as a result of changes in general economic conditions or otherwise, which has had or could reasonably be delivered expected to Purchaser.have a Material Adverse Effect;
(m) Purchaser shall have received novations a duly executed Covenant Not to Compete of all Client Contracts (Seller substantially in the form of Client Novation AgreementsAnnex 8.1(m), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.;
(n) All necessary consentsPurchaser, approvals IFC and authorizations from third partiesSeller, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases shall have entered into a purchase and material Property Leases, whether or not required pursuant to supply agreement substantially in accordance with the terms of such instruments, to set forth in the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.term sheet attached hereto as Annex 8.1(n); and
(o) Seller shall have executed and delivered arranged to Purchaser a ▇▇▇▇ have Congress Financial Corporation release its Lien on Division Assets so as to enable Purchaser's lender to substitute itself for Seller's lender in connection with the Purchaser's assumption of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) heretoIRB Indebtedness.
(p) Seller shall have executedreceived from NJDEP (i) a No Further Action letter with Covenant not to Sue; (▇i) a de minimus quantity exemption; or (iii) unconditional approval of Seller's negative declaration (collectively, acknowledged before a notary and delivered to Purchaser an assignment "ISRA Approval") or (iv) approval of Seller's remediation agreement or remedial action work plan. Seller shall promptly apply for one of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached above, as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior appropriate, pursuant to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between PurchaserIndustrial Sites Recovery Act, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form satisfactory to Purchaser.N.J.
Appears in 1 contract
Conditions of Purchaser. Notwithstanding any other provision of ----------------------- this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There shall not have been be instituted or and pending or threatened any action, suit or proceeding by or Action before any court, arbitrator or governmental agency Governmental Entity challenging Purchaser's the acquisition of the Business Assets or the Business, by Purchaser or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or seeking damages in connection therewithhereby;Payment).
(b) The representations and warranties of Seller in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and Seller shall have complied with all covenants and agreements and satisfied all conditions on Seller's part to be performed or satisfied by Seller on or prior to the Closing Date.;
(cd) Any approvalSeller and Imperial shall have entered into the Noncompetition Covenant (the "Covenant") in substantially the form attached as -------- Annex B hereto;
(f) All consents from third parties, consent or waiting period required by including from any governmental agency or authority Person necessary or material to for the consummation of the transactions contemplated hereby shall have been obtained obtained;
(g) The Purchaser, Seller and Imperial shall have received all required approvals from Governmental Entities to consummate the transactions contemplated by this Agreement, and Purchaser shall have received confirmation from the California Department of Financial Institutions, and/or an opinion from its counsel, reasonably satisfactory to it, to the effect that Section 4859 of the California Financial Code is applicable to Purchaser's acquisition of the Trust Business;
(h) No Material Adverse Effect shall have occurred on or expiredprior to the Closing;
(i) The Purchaser shall have received copies of resolutions of the Boards of Directors of the Seller and Imperial, duly certified by a corporate secretary as of the Closing, authorizing performance of this Agreement, the Transition Agreement and the Covenant and authorizing an officer to execute this Agreement, the Transition Agreement and the Covenant and any other agreements or documents required in connection herewith or therewith to which the Seller is a party;
(j) The Purchaser shall have received an opinion of counsel for the Seller and Imperial (which may be in-house counsel), dated as of the date of the Closing, and in form and substance reasonably satisfactory to the Purchaser, to the effect that:
(i) the Seller is a trust company within the meaning of Section 103 of the California Financial Code, duly established and validly existing under the laws of California;
(ii) each of the Seller and Imperial has the organizational power and authority to execute, deliver and perform this Agreement, the Transition Agreement and the Covenant and to consummate the transactions contemplated hereby and thereby; all organizational acts and other proceedings required to be taken by or on the part of the Seller and Imperial to execute, deliver and perform this Agreement, the Transition Agreement and the Covenant and to consummate the transactions contemplated hereby and thereby have been duly and validly taken; and this Agreement, the Transition Agreement and the Covenant have been duly executed and delivered by the Seller and Imperial, and this Agreement and the Transition Agreement constitute the valid and binding agreements of, the Seller and Imperial, enforceable in accordance with their respective terms, except as limited by applicable bankruptcy, insolvency, receivership, conservatorship, reorganization, liquidation, readjustment of debt, moratorium or other similar laws affecting the rights of creditors (or the rights of creditors of a state or national banking association), trustees and agents generally and by general equitable principles; and
(iii) the execution, delivery and performance by the Seller and Imperial of this Agreement, the Transition Agreement and the Covenant do not, and the consummation by the Seller and Imperial of the transactions contemplated hereby and thereby will not, violate or conflict with the articles of association, bylaws or other constituent documents of the Seller or Imperial, as the case may be, includingor, without limitationto the best of such counsel's knowledge, any law or regulation currently applicable waiting period under to the HSR Act.
(d) Purchaser shall have received a certificate Seller or Imperial or, to the best of Seller substantially in the form attached hereto as Exhibit 8.1(d).
(e) The Key Employees shall have entered into the Key Employee Contractssuch counsel's knowledge, and Purchaser shall have received signed offer letters from at least 85% of Employees and Contractors Purchaser desires any agreement or instrument, or currently applicable award, order, judgment or decree, known to hire as employees.
(f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special such counsel to Seller, a written legal opinion dated be material to the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(h) The Board of Directors of Seller shall have approved this Agreement and the material terms consummation of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved by this Agreement, the Transition Agreement and the material terms of Covenant, to which the transactions contemplated hereby.
(j) All LiensSeller or Imperial is a party or by which it is bound, or require any filing by the Seller or Imperial with, or authorization, approval, consent or other than Permitted Liensaction with respect to the Seller or Imperial by, on any of the Business Assets shall governmental agency, except such as have been releasedmade or obtained and are in full force and effect.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(m) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) The Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (Sale for the "▇▇▇▇ of Sale") Assets substantially in the form attached as Exhibit 8.1(o) Annex D ------- hereto.
(pl) The Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be provided evidence reasonably satisfactory to Purchaser that Seller has obtained for the benefit of Purchaser the insurance coverages described in, and its counsel.
otherwise complied with the requirements of, Section 9.4(a) (r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet"iii) and the related statements of income and cash flows for the two-months then ended(iv).
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form satisfactory to Purchaser.
Appears in 1 contract
Conditions of Purchaser. Notwithstanding any other provision On the Closing Date, subject to the satisfaction of this Agreementthe following conditions precedent, the obligations Purchaser agrees to assume, accept and purchase all of the Seller’s right, title and interest in, to and under (x) the Amended and Restated Note and (y) all of the Security Documents:
A. all of the conditions set out in the Transaction Agreement shall have been satisfied or waived, in a manner reasonably satisfactory to the Purchaser to consummate (other than those conditions only capable of being satisfied as of the closing of the transactions contemplated by this Agreement shall be subject to in the satisfaction, at Transaction Agreement);
B. on or prior to the Closing Date, the Original Note shall be amended and restated as the Amended and Restated Note and shall have delivered an original certificate for the Amended and Restated Note (in a form satisfactory to the Purchaser) to the Seller and the Seller shall deliver such certificate representing the Amended and Restated Note to the Purchaser or the at the direction of the Purchaser;
C. the Borrower shall, and shall cause each of the following conditions precedent. If other Obligors, to enter into a confirmation of guarantee and security agreement and affirmation of the Successor Secured Party’s status and rights under the Security Documents, in form and substance satisfactory to the Purchaser;
D. receipt of approval for the transactions contemplated herein by the shareholders and board of directors of the Borrower and all other requisite approvals, consents, notifications, filings or other authorizations as the Purchaser terminates this may determine (including, without limitation, any approvals, consents, notifications, filings or other authorizations that may be required pursuant to the Competition Act (Canada));
E. receipt of approvals from the Toronto Stock Exchange and NASDAQ, satisfactory to the Purchaser and the Borrower;
F. the Purchaser shall be satisfied that (x) any and all financing statements, financing change statements and similar filings relating to the Security Documents have been completed and (y) any and all original collateral previously delivered by the Borrower to the Seller shall have been delivered to the Purchaser;
G. no Material Adverse Effect (as defined in the Transaction Agreement prior shall have occurred in respect of the Borrower;
H. each and every representation and warranty of the Seller shall be true and correct (without giving effect to any limitation or qualification as to “materiality” or “Material Adverse Effect” set forth in such representations and warranties) as of the date when made and as of the Closing Date because any as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such condition is specific date), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not so satisfiedhad and would not be reasonably expected to have a Material Adverse Effect, Purchaser and the Seller shall have no liability hereunder except as otherwise set forth performed, satisfied and complied in Article 9 hereof. Purchaser may unilaterally waive any of all material respects with the following covenants, agreements and conditions precedent required to Purchaser's obligations; providedbe performed, any such waiver shall be effective only if satisfied or complied with by the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Date:
(a) There shall not have been instituted or pending or threatened any action, suit or proceeding by or before any court, arbitrator or governmental agency challenging Purchaser's acquisition of the Business Assets or the Business, or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or seeking damages in connection therewith.
(b) . The representations and warranties of Seller in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and Seller shall have complied with all covenants and agreements and satisfied all conditions to be performed or satisfied by Seller on or prior to the Closing Date.
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of the transactions contemplated hereby shall have been obtained or expired, as the case may be, including, without limitation, any applicable waiting period under the HSR Act.
(d) Purchaser shall have received a certificate certificate, duly executed by a duly authorized officer of Seller substantially the Seller, dated as of the Closing Date, to the foregoing effect;
I. no Encumbrance shall exist in relation to the form attached hereto Amended and Restated Note or any of the Security Documents;
J. the outstanding principal amount of the Amended and Restated Note (the “Principal Amount”) shall not be less than $160,000,000;
K. the Seller, as Exhibit 8.1(d).
(e) The Key Employees retiring agent and the Purchaser, as successor agent shall have entered into executed an Agency Transfer Agreement pursuant to the Key Employee ContractsSecurities Purchase Agreement between the Seller and the Borrower dated May 27, 2021 and Purchaser shall have received signed offer letters from at least 85% the Deed of Employees and Contractors Purchaser desires to hire as employees.
(f) Purchaser shall have received from ▇'Hypothec dated February 17th, 2021 executed before A▇▇▇▇▇ Ashenden Febbraio, notary under number 3987 of his minutes;
L. the Seller, the Purchaser and the Borrower shall have executed a Deed of Substitution of “Fondé de pouvoir” with respect to the Deed of Hypothec dated February 17th, 2021 executed before A▇▇▇▇▇ & ▇▇▇▇Febbraio, special counsel to notary under number 3987 of his minutes;
M. the Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(h) The Board of Directors of Seller shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(m) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller Hexo Operations Inc. shall have executed and delivered to Purchaser a ▇▇▇▇ Deed of sale (the "▇▇▇▇ Substitution of Sale") substantially in the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior “Fondé de pouvoir” with respect to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale Deed of Assets between PurchaserHypothec dated February 17th, ▇2021 executed before A▇▇▇▇▇ Febbraio, notary under number 3987 of his minutes;
N. receipt of confirmation of the assignments contemplated hereunder by the Trustee under the Indenture and acknowledgment that the Amended and Restated Note either (i) continues to be registered as a security under the Indenture or (ii) has been authenticated and delivered pursuant to the Indenture;
O. if required by the Purchaser, GLAS Trust Company LLC or the successor thereof, if applicable, shall have entered into a supplemental indenture pursuant to the Indenture with the Purchaser, in form and substance satisfactory to the Purchaser; and
P. the Purchaser, the Borrower and Bank of Montreal shall have entered into a blocked account agreement in relation to US Dollar Account No. 0▇▇▇-▇▇▇▇▇▇▇ and the sole shareholder of -▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") in form and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form substance satisfactory to Purchaser.the Purchaser.
Appears in 1 contract
Sources: Assignment and Assumption Agreement (Tilray Brands, Inc.)
Conditions of Purchaser. Notwithstanding any other provision of this Agreement, the obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions precedent. If Purchaser terminates this Agreement prior to the Closing Date because any such condition is not so satisfied, Purchaser shall have no liability hereunder except as otherwise set forth in Article 9 hereof. Purchaser may unilaterally waive any of the following conditions precedent to Purchaser's obligations; provided, any such waiver shall be effective only if the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Dateconditions:
(a) There shall not have been be instituted or and pending or threatened any action, suit or proceeding by or Action before any court, arbitrator or governmental agency Governmental Entity (i) challenging Purchaser's the acquisition of the Business Assets or the Business, Shares by Purchaser or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or (ii) seeking damages in connection therewith.to prohibit the direct or indirect ownership or operation by Purchaser of all or a material portion of the business or assets of the Company, or to compel Purchaser or the Company to dispose of or hold separate all or a material portion of the business or assets of the Company or Purchaser;
(b) The representations and warranties of Seller each of the Shareholders in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and Seller each of the Shareholders shall have complied with all covenants and agreements and satisfied all conditions on such Shareholder' part to be performed or satisfied by Seller on or prior to the Closing Date.;
(c) Any approvalPurchaser shall have received from the President of the Company a certificate dated the Closing Date in substantially the form attached as Exhibit D hereto;
(d) Purchaser shall have received from each Shareholder a certificate dated the Closing Date in substantially the form attached as Exhibit E hereto;
(e) Purchaser shall have received a certificate of the Secretary of the Company in substantially the form attached as Exhibit F hereto;
(f) Elizabe▇▇ ▇▇▇▇ ▇▇▇▇▇ have entered into an Employment Agreement with the Company in substantially the form attached as Exhibit B. James C▇▇▇ ▇▇▇▇▇ have entered into a Noncompetition Agreement with Purchaser and the Company in substantially the form attached as Exhibit C hereto;
(g) Purchaser shall have concluded (through its representatives, consent accountants, counsel and other experts) an investigation of the business, condition (financial and other), properties, assets, prospects, operations and affairs of the Company and shall be satisfied, in its sole discretion, with the results thereof;
(h) All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments, releases and documents referenced herein or waiting incident to the transactions contemplated hereby shall be in form and substance satisfactory to Purchaser and its counsel;
(i) Purchaser shall have received reasonable assurances from those employees, if any, of the Company that may be identified by Purchaser in its discretion that they will remain in the employ of the Company for a reasonable period required by of time after the consummation of the transactions contemplated hereby.;
(j) All consents from third parties, including from any governmental agency Governmental Entity, landlord or authority other Person, necessary or material to for the consummation of the transactions contemplated hereby shall have been obtained or expired, as the case may be, including, without limitation, any applicable waiting period under the HSR Act.obtained;
(d) Purchaser shall have received a certificate of Seller substantially in the form attached hereto as Exhibit 8.1(d).
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall have received signed offer letters from at least 85% of Employees and Contractors Purchaser desires to hire as employees.
(f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(hk) The Board of Directors of Seller Purchaser shall have authorized and approved this Agreement and the material terms of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.;
(l) All Business Assetsofficers and directors of the company shall have resigned as such, including effective of the Business Records, shall be delivered to Purchaser.Closing;
(m) Purchaser No act, event or condition shall have received novations of all Client Contracts (in occurred after the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether date hereof which Purchaser determines has had or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall could have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser had a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ in the form satisfactory to Purchaser.Material Adverse Effect;
Appears in 1 contract
Sources: Securities Purchase Agreement (U S Plastic Lumber Corp)
Conditions of Purchaser. Notwithstanding any other provision On the Closing Date, subject to the satisfaction of this Agreementthe following conditions precedent, the obligations Purchaser agrees to assume, accept and purchase all of the Seller’s right, title and interest in, to and under (x) the Amended and Restated Note and (y) all of the Security Documents:
A. all of the conditions set out in the Transaction Agreement shall have been satisfied or waived, in a manner reasonably satisfactory to the Purchaser to consummate (other than those conditions only capable of being satisfied as of the closing of the transactions contemplated by this Agreement shall be subject to in the satisfaction, at Transaction Agreement);
B. on or prior to the Closing Date, the Original Note shall be amended and restated as the Amended and Restated Note and shall have delivered an original certificate for the Amended and Restated Note (in a form satisfactory to the Purchaser) to the Seller and the Seller shall deliver such certificate representing the Amended and Restated Note to the Purchaser or the at the direction of the Purchaser;
C. the Borrower shall, and shall cause each of the following conditions precedent. If other Obligors, to enter into a confirmation of guarantee and security agreement and affirmation of the Successor Secured Party’s status and rights under the Security Documents, in form and substance satisfactory to the Purchaser;
D. receipt of approval for the transactions contemplated herein by the shareholders and board of directors of the Borrower and all other requisite approvals, consents, notifications, filings or other authorizations as the Purchaser terminates this may determine (including, without limitation, any approvals, consents, notifications, filings or other authorizations that may be required pursuant to the Competition Act (Canada));
E. receipt of approvals from the Toronto Stock Exchange and NASDAQ, satisfactory to the Purchaser and the Borrower;
F. the Purchaser shall be satisfied that (x) any and all financing statements, financing change statements and similar filings relating to the Security Documents have been completed and (y) any and all original collateral previously delivered by the Borrower to the Seller shall have been delivered to the Purchaser;
G. no Material Adverse Effect (as defined in the Transaction Agreement prior shall have occurred in respect of the Borrower;
H. each and every representation and warranty of the Seller shall be true and correct (without giving effect to any limitation or qualification as to “materiality” or “Material Adverse Effect” set forth in such representations and warranties) as of the date when made and as of the Closing Date because any as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such condition is specific date), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not so satisfiedhad and would not be reasonably expected to have a Material Adverse Effect, Purchaser and the Seller shall have no liability hereunder except as otherwise set forth performed, satisfied and complied in Article 9 hereof. Purchaser may unilaterally waive any of all material respects with the following covenants, agreements and conditions precedent required to Purchaser's obligations; providedbe performed, any such waiver shall be effective only if satisfied or complied with by the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Date:
(a) There shall not have been instituted or pending or threatened any action, suit or proceeding by or before any court, arbitrator or governmental agency challenging Purchaser's acquisition of the Business Assets or the Business, or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby or seeking damages in connection therewith.
(b) . The representations and warranties of Seller in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and Seller shall have complied with all covenants and agreements and satisfied all conditions to be performed or satisfied by Seller on or prior to the Closing Date.
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of the transactions contemplated hereby shall have been obtained or expired, as the case may be, including, without limitation, any applicable waiting period under the HSR Act.
(d) Purchaser shall have received a certificate certificate, duly executed by a duly authorized officer of Seller substantially the Seller, dated as of the Closing Date, to the foregoing effect;
I. no Encumbrance shall exist in relation to the form attached hereto Amended and Restated Note or any of the Security Documents;
J. the outstanding principal amount of the Amended and Restated Note (the “Principal Amount”) shall not be less than $160,000,000;
K. the Seller, as Exhibit 8.1(d).
(e) The Key Employees retiring agent and the Purchaser, as successor agent shall have entered into executed an Agency Transfer Agreement pursuant to the Key Employee ContractsSecurities Purchase Agreement between the Seller and the Borrower dated May 27, 2021 and Purchaser shall have received signed offer letters from at least 85% the Deed of Employees and Contractors Purchaser desires to hire as employees.
(f) Purchaser shall have received from Hypothec dated February 17th, 2021 executed before ▇'▇▇▇▇▇ Ashenden Febbraio, notary under number 3987 of his minutes;
L. the Seller, the Purchaser and the Borrower shall have executed a Deed of Substitution of “Fondé de pouvoir” with respect to the Deed of Hypothec dated February 17th, 2021 executed before ▇▇▇▇▇▇ & Febbraio, notary under number 3987 of his minutes; M. the Seller, the Purchaser and Hexo Operations Inc. shall have executed a Deed of Substitution of “Fondé de pouvoir” with respect to the Deed of Hypothec dated February 17th, 2021 executed before ▇▇▇▇▇▇ Febbraio, special counsel to Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(h) The Board notary under number 3987 of Directors his minutes; N. receipt of Seller shall have approved this Agreement and the material terms confirmation of the transactions assignments contemplated hereby.
hereunder by the Trustee under the Indenture and acknowledgment that the Amended and Restated Note either (i) Seller's Shareholder continues to be registered as a security under the Indenture or (ii) has been authenticated and delivered pursuant to the Indenture; O. if required by the Purchaser, GLAS Trust Company LLC or the successor thereof, if applicable, shall have approved this Agreement and entered into a supplemental indenture pursuant to the material terms of Indenture with the transactions contemplated hereby.
(j) All LiensPurchaser, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to the Purchaser.
(l) All Business Assets; and P. the Purchaser, including the Business Records, shall be delivered to Purchaser.
(m) Purchaser Borrower and Bank of Montreal shall have received novations of all Client Contracts (entered into a blocked account agreement in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties relation to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the sole shareholder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on the Closing Date.
(s) Seller shall deliver to Purchaser a balance sheet of Seller as of February 29, 2000 (the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser shall have received releases from the former shareholders of Seller and ▇▇▇▇▇▇▇ ▇US Dollar Account No. ▇▇▇▇-▇▇▇▇-▇▇ ▇▇, in the form and substance satisfactory to the Purchaser.
Appears in 1 contract
Conditions of Purchaser. Notwithstanding any other provision On the Closing Date, subject to the satisfaction of this Agreementthe following conditions precedent, the obligations Purchaser agrees to assume, accept and purchase all of the Seller’s right, title and interest in, to and under (x) the Amended and Restated Note and (y) all of the Security Documents:
A. all of the conditions set out in the Transaction Agreement shall have been satisfied or waived, in a manner reasonably satisfactory to the Purchaser to consummate (other than those conditions only capable of being satisfied as of the closing of the transactions contemplated by this Agreement shall be subject to in the satisfaction, at Transaction Agreement);
B. on or prior to the Closing Date, the Original Note shall be amended and restated as the Amended and Restated Note and shall have delivered an original certificate for the Amended and Restated Note (in a form satisfactory to the Purchaser) to the Seller and the Seller shall deliver such certificate representing the Amended and Restated Note to the Purchaser or the at the direction of the Purchaser;
C. the Borrower shall, and shall cause each of the following conditions precedent. If other Obligors, to enter into a confirmation of guarantee and security agreement and affirmation of the Successor Secured Party’s status and rights under the Security Documents, in form and substance satisfactory to the Purchaser;
D. receipt of approval for the transactions contemplated herein by the shareholders and board of directors of the Borrower and all other requisite approvals, consents, notifications, filings or other authorizations as the Purchaser terminates this may determine (including, without limitation, any approvals, consents, notifications, filings or other authorizations that may be required pursuant to the Competition Act (Canada));
E. receipt of approvals from the Toronto Stock Exchange and NASDAQ, satisfactory to the Purchaser and the Borrower;
F. the Purchaser shall be satisfied that (x) any and all financing statements, financing change statements and similar filings relating to the Security Documents have been completed and (y) any and all original collateral previously delivered by the Borrower to the Seller shall have been delivered to the Purchaser;
G. no Material Adverse Effect (as defined in the Transaction Agreement prior shall have occurred in respect of the Borrower;
H. each and every representation and warranty of the Seller shall be true and correct (without giving effect to any limitation or qualification as to “materiality” or “Material Adverse Effect” set forth in such representations and warranties) as of the date when made and as of the Closing Date because any as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such condition is specific date), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not so satisfiedhad and would not be reasonably expected to have a Material Adverse Effect, Purchaser and the Seller shall have no liability hereunder except as otherwise set forth performed, satisfied and complied in Article 9 hereof. Purchaser may unilaterally waive any of all material respects with the following covenants, agreements and conditions precedent required to Purchaser's obligations; providedbe performed, any such waiver shall be effective only if satisfied or complied with by the same is in writing, signed by Purchaser and delivered to Seller at or prior to the Closing Date:
(a) There . The Purchaser shall not have been instituted or pending or threatened any actionreceived a certificate, suit or proceeding duly executed by or before any court, arbitrator or governmental agency challenging Purchaser's acquisition a duly authorized officer of the Business Assets or the BusinessSeller, or otherwise seeking to restrain or prohibit the consummation dated as of the transactions contemplated hereby Closing Date, to the foregoing effect;
I. no Encumbrance shall exist in relation to the Amended and Restated Note or seeking damages in connection therewith.any of the Security Documents;
(b) The representations J. the outstanding principal amount of the Amended and warranties of Seller in this Agreement shall be true and correct in all material respects on and Restated Note as of the Closing Date with (the same effect “Principal Amount”) shall not be less than $160,000,000;
K. the Seller, as if made on retiring agent and the Closing Date and Seller Purchaser, as successor agent shall have complied with all covenants and agreements and satisfied all conditions to be performed or satisfied by Seller on or prior to the Closing Date.
(c) Any approval, consent or waiting period required by any governmental agency or authority necessary or material to the consummation of the transactions contemplated hereby shall have been obtained or expired, as the case may be, including, without limitation, any applicable waiting period under the HSR Act.
(d) Purchaser shall have received a certificate of Seller substantially in the form attached hereto as Exhibit 8.1(d).
(e) The Key Employees shall have entered into the Key Employee Contracts, and Purchaser shall have received signed offer letters from at least 85% of Employees and Contractors Purchaser desires to hire as employees.
(f) Purchaser shall have received from ▇'▇▇▇▇▇ Ashenden ▇▇▇▇▇ & ▇▇▇▇, special counsel to Seller, a written legal opinion dated the Closing Date in the form attached hereto as Exhibit 8.1(f).
(g) Seller and Escrow Agent shall each have executed the Escrow Agreement.
(h) The Board of Directors of Seller shall have approved this an Agency Transfer Agreement and the material terms of the transactions contemplated hereby.
(i) Seller's Shareholder shall have approved this Agreement and the material terms of the transactions contemplated hereby.
(j) All Liens, other than Permitted Liens, on any of the Business Assets shall have been released.
(k) Seller's landlords shall have consented to Seller's assignment of the Property Leases to Purchaser and issued to Purchaser their assignments in form and substance satisfactory to Purchaser.
(l) All Business Assets, including the Business Records, shall be delivered to Purchaser.
(m) Purchaser shall have received novations of all Client Contracts (in the form of Client Novation Agreements), Contractor Contracts (in the form of Contractor Novation Agreements) and all material Contracts.
(n) All necessary consents, approvals and authorizations from third parties, including, without limitation, from the non-Seller parties to all Client Contracts, material Assets Leases and material Property Leases, whether or not required pursuant to the terms of such instruments, to Securities Purchase Agreement between the assignments contemplated hereby shall have been obtained notwithstanding Purchaser's right under Section 2.3 hereof to require Seller to cooperate with it in obtaining the benefit of any such instrument absent assignment.
(o) Seller shall have executed and delivered to Purchaser a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") substantially in the form attached as Exhibit 8.1(o) hereto.
(p) Seller shall have executed, acknowledged before a notary and delivered to Purchaser an assignment of the Intangible Assets (the "Assignment of Intangibles") substantially in the form attached as Exhibit 8.1(p) hereto.
(q) All proceedings taken by Seller and all instruments the Borrower dated May 27, 2021 and the Deed of Hypothec dated February 17th, 2021 executed and delivered by Seller on or prior to the Closing Date in connection with the transactions herein contemplated shall be reasonably satisfactory to Purchaser and its counsel.
(r) The closing pursuant to that certain Agreement for Purchase and Sale of Assets between Purchaser, before ▇▇▇▇▇▇ ▇Febbraio, notary under number 3987 of his minutes;
L. the Seller, the Purchaser and the Borrower shall have executed a Deed of Substitution of “Fondé de pouvoir” with respect to the Deed of Hypothec dated February 17th, 2021 executed before ▇▇▇▇▇▇ Febbraio, notary under number 3987 of his minutes; M. the Seller, the Purchaser and Hexo Operations Inc. shall have executed a Deed of Substitution of “Fondé de pouvoir” with respect to the sole shareholder Deed of Hypothec dated February 17th, 2021 executed before ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall occur on Febbraio, notary under number 3987 of his minutes; N. receipt of confirmation of the Closing Date.
assignments contemplated hereunder by the Trustee under the Indenture and acknowledgment that the Amended and Restated Note either (si) Seller shall deliver continues to Purchaser be registered as a balance sheet of Seller as of February 29security under the Indenture or (ii) has been authenticated and delivered pursuant to the Indenture; O. if required by the Purchaser, 2000 (TMI Trust Company or the "Effective Date Balance Sheet") and the related statements of income and cash flows for the two-months then ended.
(t) Purchaser successor thereof, if applicable, shall have received releases from entered into a supplemental indenture pursuant to the former shareholders Indenture with the Purchaser, in form and substance satisfactory to the Purchaser; and P. the Purchaser, the Borrower and Bank of Seller and ▇▇▇▇▇▇▇ ▇Montreal shall have entered into a blocked account agreement in relation to US Dollar Account No. ▇▇▇▇-▇▇▇▇-▇▇ ▇▇, in the form and substance satisfactory to Purchaser.the Purchaser.
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Sources: Assignment and Assumption Agreement (Tilray Brands, Inc.)