Conditions to Closing. (a) nStor's obligation to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor): (i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date. (ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby. (iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco. (iv) nStor shall have received the nStor Financing on or prior to the Closing Date. (v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement. (vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof. (vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time. (viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date. (b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇): (i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date. (ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby. (iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 4 contracts
Sources: Purchase Agreement (Nstor Technologies Inc), Purchase Agreement (Nstor Technologies Inc), Purchase Agreement (Nstor Technologies Inc)
Conditions to Closing. (a) nStor's a. The obligation of the parties hereto to consummate the sale, purchase and issuance of the Securities pursuant to this Agreement on the Closing Date is subject to the condition that (i) as of the Closing Date, no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the transactions contemplated hereby illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby and (ii) the Merger Agreement by and among New Parent, Eagle Merger Corp. and Issuer, dated November 13, 2022, as amended and/or restated from time to time (the “Business Combination Agreement”), pursuant to which the Issuer will become a wholly-owned subsidiary of New Parent (the “Business Combination”), has not been terminated in accordance with its terms; and
b. The obligation of the Issuer to consummate the sale and issuance of the Securities at the Closing pursuant to this Agreement shall be subject to the fulfillment, at satisfaction or prior to Closing, of each valid waiver by the Issuer of the following additional conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):that:
(i) ▇▇▇▇▇ shall have performed all representations and warranties of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ Investor contained in this Agreement are true and correct in all material respects (other than representations and warranties that are qualified as to materiality, which representations and warranties shall be true and correct both at the date on which this Agreement is signed and in all respects) at and as of the Closing Date as if made anew at Date, and consummation of the Closing shall constitute a reaffirmation by the Investor of each of the representations and warranties of the Investor contained in this Agreement as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.;
(bii) The obligations the Investor shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by it at or prior to the Closing; and
(iii) the Issuer shall have received, at the Closing, subscriptions for the purchase of Securities by ▇▇▇▇ ▇▇▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor ▇ in an amount equal to or greater than $4,500,000, and the purchase price related to such subscriptions shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with been received by it under this Agreement on the Issuer at or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation time of the transactions contemplated herebyClosing.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 4 contracts
Sources: Securities Purchase Agreement (TLG Acquisition One Corp.), Securities Purchase Agreement (TLG Acquisition One Corp.), Securities Purchase Agreement (TLG Acquisition One Corp.)
Conditions to Closing. 7.1 Conditions to the Obligation of the Primary Purchaser and the Company. The obligations of the Primary Purchaser and the Company to consummate the Closing are subject to the satisfaction (or waiver by the Primary Purchaser and the Company) of each of the following conditions:
(a) nStor's obligation to consummate There shall not be (i) in force any statute, rule, regulation, order or decree restraining, enjoining or prohibiting the consummation of the transactions contemplated by this Agreement shall be subject to and the fulfillment, at other Transaction Documents or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents material suit or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking a Governmental Authority to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate enjoin the transactions contemplated by this Agreement and the other Transaction Documents.
(b) All consents, approvals, exemptions, authorizations, waivers or other actions by, or notice to, or filings with, any Governmental Authorities in respect of any Requirement of Law necessary to consummate the transactions contemplated hereby, shall have been obtained, provided, however, that the provisions of this Section 7.1(b) shall not be subject available to any party whose failure to fulfill its obligations pursuant to Section 6.1 shall have been the fulfillmentcause of, at or prior shall have resulted in, the failure to Closingobtain such consents, of each of the following conditions precedent (any approvals, exemptions, authorizations, waivers or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):other actions.
(i) nStor The Company shall have performed all of its obligations received (and delivered to the Purchasers) written confirmation from Nasdaq that the transactions contemplated by this Agreement and the other Transaction Documents shall not require shareholder approval pursuant to Rule 4350(i)(2) and the Company shall have complied with all the conditions of its covenants required such rule, (ii) the Company shall have delivered to be performed the Nasdaq, in accordance with Rule 4310(c)(17), a notice of the proposed issuance of the Preferred Stock pursuant to this Agreement, at least fifteen calendar days prior to the Closing Date or to be complied with by it under this Agreement on or received from Nasdaq, prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation a waiver of the transactions contemplated hereby.
requirement to give such notice, and (iii) There the shares of Common Stock reserved for issuance upon conversion of the Series A Preferred Stock shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or authorized for listing on the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this AgreementNasdaq Stock Market.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Williams Communications Group Inc), Stock Purchase Agreement (Williams Communications Group Inc), Stock Purchase Agreement (Ibeam Broadcasting Corp)
Conditions to Closing. (a) nStor's obligation The obligations of Seller and Purchaser to consummate sell and acquire, respectively, the transactions contemplated by this Agreement shall be Assets on the terms and conditions set forth herein are subject to the fulfillment, at or prior to the Closing, of each of the following conditions precedent (conditions, any or all of which may be waived in writing, in whole or in part, part by nStor):the parties hereto:
(i) ▇▇▇▇▇ Purchaser shall have performed all consummated, on or before June 30, 2015, a firm commitment underwritten initial public offering pursuant to an effective registration statement filed under the Securities Act of 1933, as amended, covering the offer and sale of shares of the obligations and complied with all common stock, par value $0.001 per share, of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.Purchaser; and
(ii) ▇▇▇▇▇ No action or proceeding before any court, governmental body or agency shall have delivered to nStor any and all approvalsbeen threatened in writing, consents asserted or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking instituted to restrain or prohibit any the sale of the Assets or the carrying out of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations obligation of ▇▇▇▇▇ Seller to consummate sell the transactions contemplated by this Agreement shall be Assets to Purchaser on the terms and conditions set forth herein is subject to the fulfillment, at or prior to the Closing, of each the following conditions:
(i) the approval by the stockholders of Seller of sale of the following conditions precedent Assets as contemplated this Agreement by the requisite vote thereof as may be required under the DGCL; and
(any or all ii) the representations and warranties of Purchaser set forth herein shall be materially true and correct as of the Closing (which condition may be waived in writingwhole or in part in the sole discretion of Seller).
(c) The obligation of Purchaser to acquire and purchase the Assets on the terms and conditions set forth herein is subject to the fulfillment, at or prior to the Closing, of the following conditions:
(i) the approval by the stockholders of Purchaser of this Agreement by the requisite vote thereof as may be required under the DGCL, Purchaser’s restated certificate of incorporation (as amended to date) and that certain Fourth Amended and Restated Investors’ Rights Agreement, dated as of January 25, 2011, among Purchaser and certain stockholders of Purchaser (as amended to date); and
(ii) the representations and warranties of Seller set forth herein shall be materially true and correct as of the Closing (which condition may be waived in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to part in the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation sole discretion of the transactions contemplated herebyPurchaser).
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Asset Purchase Agreement (GLAUKOS Corp), Asset Purchase Agreement (GLAUKOS Corp), Asset Purchase Agreement (GLAUKOS Corp)
Conditions to Closing. 5.1. Conditions to the Obligations of the Company and the Investors. The obligations of the Company and the Investors to effect the Closing shall be subject to the following conditions:
(a) nStor's obligation receipt of all approvals and authorizations of, filings with, and notifications to, or expiration or termination of any applicable waiting period, under applicable Law required to consummate the transactions contemplated hereunder, if any;
(b) no provision of any applicable Law and no judgment, injunction, order or decree shall prohibit the consummation of any of the transactions contemplated at the Closing;
(c) the Registration Statement shall have been declared effective by this Agreement the SEC and shall continue to be effective and no stop order shall have been entered by the SEC with respect thereto;
(d) the shares of Common Stock to be issued in the Rights Offering shall be approved for listing on Nasdaq, subject to official notice of issuance; and
(e) the Rights Offering shall have been consummated in accordance with the terms of and subject to the conditions in Section 1.1(d).
5.2. Conditions to the Obligations of the Company. The obligations of the Company to effect the Closing shall be subject to the fulfillmentfollowing conditions:
(a) The representations of the Investors in Section 1.1(b) shall be true and correct (i) in the case of the Registration Statement and any post-effective amendments thereto, at the respective times referred to in Section 1.1(c), and in the case of the Prospectus, as of its date, and (ii) as of the Closing Date,
(b) Each of the Investors shall have performed in all material respects all of its obligations hereunder required to be performed by it, and complied with the covenants hereunder applicable to it in all material respects, at or prior to the Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(iic) ▇▇▇▇▇ shall have delivered to nStor any and all approvalsSince the date of this Agreement, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There there shall not have been institutedany material adverse effect or any effect that would, pending individually or threatened against Andatacoin the aggregate, ▇▇▇▇▇, nStor reasonably be expected to materially and adversely affect the Investors’ ability to perform their obligations under this Agreement or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of consummate the transactions contemplated by this Agreementhereby on a timely basis.
(vid) ▇. ▇▇▇▇▇ The Company shall have received a certificate, signed by an authorized person of each Investor, certifying as to the matters set forth in Sections 5.2(a), 5.2(b) and 5.2(c).
(e) The Investors shall have entered into Employment Agreement as provided an agreement with the Company to vote, for in Section 3(a) hereofa period of three years following the Closing, all of the Backstop Acquired Shares consistent with the recommendation of the board of directors of the Company on any matter submitted to the vote of the stockholders of the Company.
5.3. Conditions to the Obligations of the Investors. The obligations of the Investors to effect the Closing shall be subject to the following conditions:
(viia) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement The 10b-5 Representation shall be true and correct both in all respects (i) in the case of the Registration Statement and any post-effective amendments thereto, at the respective times referred to in Section 1.1(c), and in the case of the Prospectus, as of its date, and (ii) as of the Closing Date, except that in the case of this clause (ii) all references to any time period or date on which referred to in Section 1.1(c) shall be deemed to be references to the Closing Date. All other representations and warranties of the Company contained in this Agreement is signed (A) that are qualified by materiality, Material Adverse Effect or words of similar import, shall be true and at correct as of the date hereof and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as if made anew at of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date) and (B) that are not qualified by materiality, Material Adverse Effect or words of similar import, shall be true and correct in all material respects as of the date hereof and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.Closing
(b) The Company shall have performed in all material respects all of its obligations of ▇▇▇▇▇ hereunder required to consummate be performed by it, and complied with the transactions contemplated by this Agreement shall be subject covenants hereunder applicable to the fulfillment, it in all material respects. at or prior to the Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(iic) nStor shall have delivered to ▇▇▇▇▇ any and all approvalsSince the date of this Agreement, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There there shall not have been institutedany Material Adverse Effect or any Effect that would, pending individually or threatened against Andatacoin the aggregate, ▇▇▇▇▇have or reasonably be expected to have a Material Adverse Effect.
(d) The Investors shall have received a certificate, nStor or the Company any suit, action or other proceeding signed by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any an officer of the transactions contemplated by this AgreementCompany, certifying as to the matters set forth in Sections 5.3(a), 5.3(b) and 5.3(c).
Appears in 3 contracts
Sources: Backstop Investment Agreement (Great Elm Capital Group, Inc.), Backstop Investment Agreement (Great Elm Capital Group, Inc.), Backstop Investment Agreement (Great Elm Capital Group, Inc.)
Conditions to Closing. (a) nStor's The obligation of Purchaser to consummate the transactions contemplated by under this Agreement shall be is subject to the fulfillment, at or prior to Closingas of the Closing Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions:
(i) ▇▇▇▇▇ Each of the representations and warranties of Seller in this Agreement shall be true and correct in all material respects as of the Closing Date as though made on the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct, on and as of such earlier date);
(ii) Seller shall have performed and complied in all of the material respects with all covenants, obligations and complied with all of the covenants undertakings required by this Agreement to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.;
(iiiii) ▇▇▇▇▇ The applicable waiting period, including any extension thereof, under the HSR Act shall have delivered expired without action taken to nStor any and all approvalsprevent consummation of the transactions contemplated by this Agreement;
(iv) No judgment, consents order or assignments to be obtained by ▇▇▇▇▇ and necessary for decree shall have been rendered which has the effect of enjoining the consummation of the transactions contemplated hereby.by this Agreement; and
(iiib) nStor The obligation of Seller to consummate the transactions contemplated under this Agreement is subject to the fulfillment, as of the Closing Date, of each of the following conditions:
(i) Each of the representations and its accountantswarranties of Purchaser in this Agreement shall be true and correct in all material respects as of the Closing Date as though made on the Closing Date, attorneys except to the extent such representations and other representatives warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects, on and as of such earlier date);
(ii) Purchaser shall have had full performed and complete access during normal business hours complied in all material respects with all covenants, obligations and undertakings required by this Agreement to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing be performed or complied with on or prior to the Closing Date.;
(viii) There The applicable waiting period, including any extension thereof, under the HSR Act shall not have expired without action taken to prevent consummation of the transactions contemplated by this Agreement; and
(iv) No judgment, order or decree shall have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or rendered which has the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any effect of enjoining the consummation of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Stock Purchase Agreement (New York Times Co), Stock Purchase Agreement (Primedia Inc), Stock Purchase Agreement (New York Times Co)
Conditions to Closing. (a) nStor's obligation 8.1 Conditions to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillment, at or fulfillment prior to Closing, or at the Closing of each of the following conditions precedent (conditions, any one or all more of which may be waived by Purchaser in writingits sole discretion:
(a) On the Closing Date, there shall be no injunction, restraining order or decree of any nature of any court or governmental agency or body of competent jurisdiction that is in whole effect that restrains or in partprohibits the consummation of the transactions contemplated by this Agreement or any such injunction, restraining order or decree or any pending lawsuit, claim or legal action relating to the transactions contemplated by nStor):this Agreement which would materially adversely affect such transactions or Purchaser's ownership, use or enjoyment of the Business or any part thereof.
(i) ▇▇▇▇▇ All of the representations and warranties of Sellers, including those set forth in Section 8.1(b)(ii) and (iii) below, contained in this Agreement or in any certificate, instrument or other document delivered to Purchaser pursuant hereto shall be complete, true and correct in all respects on and as of the Effective Date, with the same force and effect as though such representations and warranties had been made on and as of the Effective Date, except to the extent that any such representation and warranty is made as of a specified date, in which case, such representation and warranty shall have been true and correct as of such date;
(ii) The representations and warranties of Sellers contained in Sections 4.1, 4.2, 4.3, 4.8, 4.10, 4.11, 4.12, 4.15, 4.16, 4.17, 4.18, 4.20, 4.21, 4.22, 4.23, 4.25, 4.26 and 4.27 of this Agreement or in any certificate, instrument or other document delivered to Purchaser pursuant hereto shall be complete, true and correct in all respects on the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that any such representation and warranty is made as of a specified date, in which case, such representation and warranty shall have been true and correct as of such date; and
(iii) To the Knowledge of Sellers, the representations and warranties contained in Section 4.9 of this Agreement or in any certificate, instrument or other document delivered to Purchaser pursuant hereto shall be complete, true and correct in all respects on the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that any such representation and warranty is made as of a specified date, in which case, such representation and warranty shall have been true and correct as of such date.
(c) Sellers shall have performed in all of the material respects all obligations and agreements and complied in all material respects with all of the covenants required contained in this Agreement to be performed or to be and complied with by them under this Agreement on or prior to or on the Closing Date.
(iid) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor Purchaser shall have received the nStor Financing on or prior to a certificate, dated the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, an authorized officer of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior Sellers to the Closing Dateeffect that the conditions specified in (b) and (c) above have been fulfilled.
(iie) nStor The Transition Services Agreement, attached as Exhibit B hereto, shall have been executed and delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated herebyparties thereto.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Asset Purchase Agreement (L 3 Communications Corp), Asset Purchase Agreement (L 3 Communications Corp), Asset Purchase Agreement (Southern California Microwave Inc)
Conditions to Closing. (ai) nStor's The obligation of the Holder hereunder to consummate the transactions contemplated by this Agreement shall be hereby at the Closing is subject to the fulfillmentsatisfaction, at or prior to Closingbefore the Closing Date, of each of the following conditions, provided that these conditions precedent (any or all of which are for the Holder’s sole benefit and may be waived by the Holder at any time in writingits sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed and delivered this Agreement to Holder;
(b) The Company shall have executed and delivered to Holder a certificate for that number of shares of Series C Stock set forth in Section 1.1;
(c) The Company shall have delivered to the Holder a certificate of the Company, dated the Closing Date, executed by the secretary of the Company certifying in whole or in part, by nStor):
such capacity and on behalf of the Company (i) ▇▇▇▇▇ shall have performed all as to the incumbency and signature of the officer of the Company who executed this Agreement; and (ii) as to the adoption of resolutions of the Board of Directors of the Company which are in full force and effect on the Closing Date, authorizing (x) the execution and delivery of this Agreement and the Series C Stock, and (y) the performance of the obligations of the Company hereunder and thereunder;
(d) The Company shall have delivered to the Holder a certificate of the Chief Executive Officer or Chief Financial Officer of the Company, dated the Closing Date, to the effect that the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and that the Company has complied with all of the covenants required agreements and satisfied all the conditions on its part to be performed or to be complied with by them under this Agreement on satisfied at or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation The obligation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ hereunder to consummate the transactions contemplated by this Agreement shall be hereby at the Closing is subject to the fulfillmentsatisfaction, at or prior to Closingbefore the Closing Date, of each of the following conditions, provided that these conditions precedent (any or all of which are for the Company’s sole benefit and may be waived by the Company at any time in writing, in whole or in part, its sole discretion by ▇▇▇▇▇):providing the Holder with prior written notice thereof:
(ia) nStor The Holder shall have performed all of its obligations executed and complied with all of its covenants required delivered to the Company this Agreement; and
(b) The Holder shall have delivered, or caused to be performed or delivered, to be complied with by it under the Company the Outstanding Notes being exchanged pursuant to this Agreement on or prior to in accordance with the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation written instructions of the transactions contemplated herebyCompany.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Exchange Agreement (Earth Search Sciences Inc), Exchange Agreement (Earth Search Sciences Inc), Exchange Agreement (Earth Search Sciences Inc)
Conditions to Closing. (a) nStor's obligation to consummate the transactions contemplated by this Agreement 3.2.1 The Closing shall be subject to the fulfillmentsatisfaction or valid waiver by the Company, at on the one hand, or prior to ClosingSubscriber, on the other, of each of the following conditions precedent (any or all of which may be waived in writingthat, in whole or in part, by nStor):on the Closing Date:
(i) ▇▇▇▇▇ No suspension of the qualification of the Securities for offering or sale or trading on the Nasdaq Global Market (“Nasdaq”) shall have performed all of the obligations occurred and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Datecontinuing.
(ii) ▇▇▇▇▇ No Authority shall have delivered to nStor enacted, issued, promulgated, enforced or entered any law, rule, regulation, judgment, decree, executive order or award (whether temporary preliminary or permanent) which is then in effect and all approvals, consents has the effect of making the transactions contemplated hereby illegal or assignments to be obtained by ▇▇▇▇▇ and necessary for otherwise prohibiting or enjoining the consummation of the transactions contemplated hereby.
(iii) nStor and its accountantsAll conditions precedent to the consummation of the Transaction set forth in the Transaction Agreement, attorneys and other representatives as determined by the parties to the Transaction Agreement, shall have had full been satisfied or waived by the party entitled to the benefit thereof (other than those conditions that, by their nature, may only be satisfied at the consummation of the Transaction, but subject to satisfaction of such conditions as of the consummation of the Transaction), and complete access during normal business hours the Transaction Closing shall be substantially concurrent with the Closing.
3.2.2 The Closing shall also be subject to the satisfaction or valid waiver by the Subscriber of the conditions that, on the Closing Date:
(i) The Company shall have performed, satisfied and complied in all offices, facilities, properties, assets, books, material respects with all agreements, files conditions and records covenants required by this Subscription Agreement to be performed by the Company at or prior to the Closing.
(ii) The representations and warranties of Andatacothe Company contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Material Adverse Effect (as defined herein), including financial which representations and operating data warranties shall be true in all respects) at and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects (other information regarding ▇▇▇▇▇ than representations and Andatacowarranties that are qualified as to materiality or Material Adverse Effect, which representations and warranties shall be true in all respects) as of such date), and consummation of the Closing, shall constitute a reaffirmation by the Company of each of the representations, warranties and agreements of the Company contained in this Subscription Agreement as of the Closing Date.
(iii) No amendment, waiver or modification of the Transaction Agreement shall have occurred that would reasonably be expected to materially and adversely affect the economic benefits that Subscriber would reasonably expect to receive under this Subscription Agreement, unless Subscriber has previously consented in writing to such amendment, waiver or modification.
(iv) nStor Company shall have received filed with Nasdaq an application or supplemental listing application for the nStor Financing on or prior listing of the Securities and Nasdaq shall have raised no objection with respect thereto, subject to the Closing Dateofficial notice of issuance.
(v) There shall not have been institutedno amendment, pending waiver or threatened against Andataco, ▇▇▇▇▇, nStor modification to the Other Subscription Agreements that materially benefits (economically or otherwise) the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking Other Subscribers thereunder unless this Subscription Agreement shall have been amended to restrain or prohibit any of reflect the transactions contemplated by this Agreementsame terms.
(vi) ▇. ▇▇▇▇▇ From and after the date hereof, there shall have entered into Employment not occurred a Material Adverse Effect which is continuing and uncured.
3.2.3 The Closing shall also be subject to the satisfaction or valid waiver by the Company of the conditions that, on the Closing Date:
(i) Subscriber shall have performed, satisfied and complied in all material respects with all agreements, conditions and covenants required by this Subscription Agreement as provided for in Section 3(a) hereofto be performed by Subscriber at or prior to the Closing.
(viiii) Each representation All representations and warranty warranties of ▇▇▇▇▇ Subscriber contained in this Subscription Agreement shall be true and correct both at the date on in all material respects (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect, which this Agreement is signed representations and warranties shall be true in all respects) at and as of the Closing Date (except for representations and warranties made as if made anew at of a specific date, which shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect, which representations and warranties shall be true in all respects) as of such time.
(viii) There has not been any material adverse change in the businessdate), operations and financial conditions of Andataco from and after the date consummation of the 1998 10-K until Closing, shall constitute a reaffirmation by the Subscriber of each of the representations, warranties and agreements of the Subscriber contained in this Subscription Agreement as of the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Subscription Agreement (TETE Technologies Inc), Subscription Agreement (TETE Technologies Inc), Subscription Agreement (TETE Technologies Inc)
Conditions to Closing. (a) nStor's The obligation of the Holder hereunder to consummate the transactions contemplated by this Agreement shall be hereby at the Closing is subject to the fulfillmentsatisfaction, at or prior to Closingbefore the Closing Date, of each of the following conditions, provided that these conditions precedent (any or all of which may are for the Holder’s sole benefit and may, where legally permissible, be waived by the Holder at any time in writing, in whole or in part, its sole discretion by nStor):providing the Company with prior written notice thereof:
(i) The Company shall have duly executed and delivered to the Holder this Agreement and the Note being exchanged at the Closing pursuant to the terms of this Agreement.
(ii) The Company shall have issued the Irrevocable Transfer Agent Instructions, in the form acceptable to the Holder, to its transfer agent;
(iii) The Holder shall have received the opinions of Sichenzia R▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, the Company’s U.S. counsel, dated as of the Closing Date, in the forms acceptable to such Holder;
(iv) The Holder shall have performed all received the opinions of R▇▇▇▇▇ & S▇▇▇▇▇▇, P.C., the Company’s M▇▇▇▇▇▇▇ Islands counsel, dated as of the obligations and complied with all of Closing Date, in the covenants required forms acceptable to be performed or to be complied with by them under this Agreement such Holder;
(v) The Conversion Shares shall have been approved for listing on the Principal Market on or prior to the Closing Date.;
(iivi) ▇▇▇▇▇ The representations and warranties of the Company in this Agreement shall have delivered to nStor any be true and correct in all approvals, consents or assignments material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on performed or satisfied at or prior to the Closing Date.;
(vvii) There No statute, rule, regulation, executive order, decree, ruling or injunction shall not have been institutedenacted, pending entered, promulgated or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding endorsed by any private party court or governmental agency, commission, bureau or body seeking to restrain or prohibit authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by this Agreement;
(viii) Since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect on the Company;
(ix) Trading in the Common Shares shall not have been suspended by the Securities and Exchange Commission (the “Commission”) or the Principal Market, the Company shall not have received any final and non-appealable notice that the listing or quotation of the Common Shares on the Principal Market shall be terminated on a date certain, there shall not have been imposed any suspension of electronic trading or settlement services by DTC with respect to the Common Shares that is continuing, and the Company shall not have received any notice from DTC to the effect that a suspension of electronic trading or settlement services by DTC with respect to the Common Shares is being imposed or is contemplated;
(x) All reports, schedules, registrations, forms, statements, information and other documents required to have been filed by the Company with the Commission pursuant to the reporting requirements of the Exchange Act, including all material required to have been filed pursuant to Section 13(a) or 15(d) of the Exchange Act, shall have been filed with the Commission under the Exchange Act; and
(xi) The Company shall have delivered to the Holder such other documents, instruments or certificates relating to the transactions contemplated by this Agreement as the Holder or its counsel may reasonably request.
(vib) ▇. ▇▇▇▇▇ The obligation of the Company hereunder to consummate the transactions contemplated hereby at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may, where legally permissible, be waived by the Company at any time in its sole discretion by providing the Holder with prior written notice thereof:
(i) The Holder shall have entered into Employment executed this Agreement as provided for in Section 3(a) hereof.and delivered the same to the Company; and
(viiii) Each representation The representations and warranty warranties of ▇▇▇▇▇ contained the Holder in this Agreement shall be true and correct both at the date in all material respects on which this Agreement is signed and at and as of the Closing Date with the same effect as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until on the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate Date and that the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor Holder shall have performed complied in all of its obligations and complied material respects with all of the agreements and satisfied all the conditions on its covenants required part to be performed or to be complied with by it under this Agreement on satisfied at or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Exchange Agreement (Box Ships Inc.), Exchange Agreement (Box Ships Inc.)
Conditions to Closing. (a) nStor's obligation The obligations of Buyer to consummate the transactions contemplated by this Agreement Closing shall be subject to the fulfillment, at prior or prior to Closing, concurrent satisfaction or waiver of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions:
(i) Each of the ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit▇▇ LSG Management, action or other proceeding by any private party or governmental agencyRW LSG Holdings and RCP, commissionas applicable, bureau or body seeking to restrain or prohibit any shall have satisfied all of the transactions contemplated conditions set forth in Section 3.1(a) of the Option Agreement (including the delivery by this each Seller to Buyer of a duly executed Joinder Agreement.);
(viii) ▇. Each of the ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇, ▇▇ contained in this Agreement LSG Management and RW LSG Holdings shall be true and correct both at the date on which this Agreement is signed and at and have delivered to Buyer a certificate of an authorized officer of such Seller, RW LSG Management or RW LSG Holdings, as applicable, dated as of the Closing Date Date, stating that the conditions specified in Section 3.1(a)(ii) and Section 3.1(a)(iii) of the Option Agreement, solely as if made anew at and they relate to such Seller, RW LSG Management or RW LSG Holdings, as of such time.applicable, have been satisfied;
(viiiiii) There has not been any material adverse change RCP shall have delivered, or cause to be delivered, to Buyer each of the items set forth in Section 3.2 of the Option Agreement; and
(iv) RCP shall have delivered to Buyer a counterpart signature page to a Mutual Release in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until form attached as Exhibit A hereto dated the Closing DateDate (the “Mutual Release”), executed by RCP.
(b) The obligations of RCP, the other ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor ▇▇ LSG Management and RW LSG Holdings to consummate the Closing shall be subject to the prior or the Company any suit, action concurrent satisfaction or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any waiver of each of the transactions contemplated following conditions:
(i) Buyer shall have satisfied all of the conditions set forth in Section 3.1(b) of the Option Agreement;
(ii) Buyer shall have delivered to RCP a certificate of any authorized officer of Buyer, dated as of the Closing Date, stating that the conditions specified in Section 3.1(b) of the Option Agreement have been satisfied;
(iii) Buyer shall have delivered, or caused to be delivered, to the Sellers and RW LSG Management, as applicable, each of the items set forth in Section 3.3 of the Option Agreement; and
(iv) Buyer shall have delivered, or caused to be delivered, to RCP the Mutual Release executed by this Agreement.Pegasus Capital Advisors, L.P.
Appears in 2 contracts
Sources: Purchase Option Exercise Agreement (Riverwood Capital Partners L.P.), Purchase Option Exercise Agreement (LED Holdings, LLC)
Conditions to Closing. (a) nStorThe obligations of Purchaser hereunder to purchase, and of the Company hereunder to sell, the Shares are subject to the fulfillment or waiver by each party of each of the following conditions:
(i) all permits, orders, approvals, consents, non-disapprovals or non-objections relating to any governmental or insurance regulatory authority which are required in connection with the consummation of the transactions contemplated by this Agreement including, but not limited to, such regulatory authorities as require a permit, order, approval, consent, non-disapproval or non-objection (in the case of any non-disapprovals or non-objections as evidenced by the time period prescribed by applicable insurance law having elapsed without Purchaser having received any objection), shall have been obtained (and, subject to Purchaser's obligation obligations under Section 5(b) and (c), not contain any conditions or other terms that are not reasonably acceptable to Purchaser) and such permits, orders, approvals, consents, non-disapprovals and/or non-objections shall be effective and shall not have been suspended, revoked or stayed;
(ii) no injunction or law prohibiting or making illegal the consummation of the transactions contemplated by this Agreement shall have been enacted, issued, promulgated or enforced by any court or governmental authority having jurisdiction over the Company or Purchaser; and
(iii) the Company and Odyssey America Reinsurance Corporation or an affiliate of Odyssey America Reinsurance Corporation shall have mutually agreed to the principal terms of, and agreed to finalize after the Settlement Date, the reinsurance agreement referred to in the Company's press release regarding the sale and purchase of the Shares dated October 18, 2001 (the "Reinsurance Agreement").
(b) The obligations of the Company to consummate the transactions contemplated by this Agreement shall be further subject to the fulfillment, at or prior to Closingthe Settlement Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
conditions: (i) ▇▇▇▇▇ the representations and warranties of Purchaser contained in this Agreement shall have performed been true and correct when made and shall be true and correct in all material respects as of the obligations Settlement Date, with the same force and complied with all effect as if made at the Settlement Date (except if made as of a specified earlier date), (ii) the covenants required to be performed or and agreements contained in this Agreement to be complied with by them under this Agreement Purchaser on or prior before the Settlement Date shall have been complied with in all material respects, and (iii) the Company shall have received a certificate from Purchaser to the Closing Dateeffect set forth in clauses (i) and (ii) signed by a duly authorized representative thereof.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(bc) The obligations of ▇▇▇▇▇ Purchaser to consummate the transactions contemplated by this Agreement shall be further subject to the fulfillment, at on or prior to Closingthe Settlement Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
conditions: (i) nStor the representations and warranties of the Company contained in this Agreement shall have performed been true and correct when made and shall be true and correct in all material respects as of its obligations the Settlement Date, with the same force and complied with all effect as if made at the Settlement Date (except if made as of its a specified earlier date), (ii) the covenants required to be performed or and agreements contained in this Agreement to be complied with by it under this Agreement the Company on or prior before the Settlement Date shall have been complied with in all material respects, and (iii) Purchaser shall have received a certificate from the Company to the Closing Dateeffect set forth in clauses (i) and (ii) signed by a duly authorized representative thereof.
(iid) nStor The Company shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained Purchaser a certified copy of resolutions duly adopted by nStor and necessary for the consummation Board of Directors of the transactions contemplated herebyCompany which shall evidence the Board Approval.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Zenith National Insurance Corp), Stock Purchase Agreement (Fairfax Financial Holdings LTD/ Can)
Conditions to Closing. (a) nStor's The obligation of each party to consummate effect the transactions contemplated by this Agreement shall be Exchange Transaction, and to execute and deliver documents, at the Closing is subject to the fulfillment, satisfaction at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.of the following conditions:
(i) each of the Shareholder Approvals and all necessary board approvals for the Exchange Transaction, the Equity Raise, the Transaction Documents and any other transaction related thereto, shall have been obtained by the Company;
(ii) ▇▇▇▇▇ the Shares shall have delivered been approved for listing on the NYSE American, subject to nStor official notice of issuance, and any and all approvals, consents other regulatory or assignments governmental approval required to be consummate the Exchange Transaction or the transactions contemplated under the Transaction Documents shall have been obtained by ▇▇▇▇▇ the Company; and
(iii) no Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, judgment, decree, injunction or other order (whether temporary, preliminary or permanent) that is in effect and necessary for the precludes consummation of the transactions contemplated hereby.
(iii) nStor and its accountants. No statute, attorneys and other representatives rule, regulation, order, injunction or decree shall have had full and complete access during normal business hours to all officesbeen enacted, facilitiesentered, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on promulgated or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding enforced by any private party Governmental Authority that prohibits or governmental agencymakes illegal this Agreement, commission, bureau the other Transaction Documents or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Datehereby or thereby.
(b) The obligations obligation of ▇▇▇▇▇ the Noteholders to consummate effect the transactions contemplated by this Agreement shall Exchange Transaction, and to execute and deliver (or cause to be executed and delivered) documents, at the Closing is subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):conditions:
(i) nStor Concurrently or prior to the Closing, the Company shall have raised at least $156.0 million in total value from the Equity Raise, with such receipt of funds or assets not subject to any conditions precedent which have not otherwise been satisfied on the Closing, other than the concurrent consummation of the Exchange Transaction;
(ii) the reincorporation of the Company in Delaware shall have occurred and the Company shall have filed the Delaware Charter with the Secretary of State of the State of Delaware and the board of directors of the Company shall have adopted amended and restated bylaws of the Company, in form and substance reasonably satisfactory to the Noteholders and their counsel;
(iii) the representations and warranties of the Company contained in Section 4 hereof shall be true and correct in all respects as of the date of this Agreement and, excepting Section 4(s) hereof, as of the Closing, with the same force and effect as though made on and as of such date;
(iv) the Company shall have delivered a certificate signed on behalf of the Company by an authorized officer of the Company in the form attached hereto as Exhibit F;
(v) the Company shall have delivered or paid, as applicable to the Noteholders, in accordance with Section 2(a) hereof, each of the items required to be delivered or paid by the Company pursuant to Section 2(a), in form and substance reasonably satisfactory to each of the Noteholders and their counsel (except that the intercreditor agreement with the agent under the Credit Facility shall be a customary intercreditor agreement reasonably acceptable to the Noteholders and negotiated by the Noteholders in good faith);
(vi) the Company shall have performed or complied with, in all of its obligations and complied with all of material respects, its covenants required to be performed or complied with as of the Closing under this Agreement, except for the covenants set forth in Section 2(a) (to the extent required to be complied with at or prior to the Closing) hereof which the Company shall have performed and complied with in all respects;
(vii) no Material Adverse Effect shall have occurred since the date of this Agreement;
(viii) the Company shall have paid all fees and expenses due and payable by it the Company as of Closing in accordance with Section 5(f);
(ix) there shall be no pending litigation and, to the knowledge of the Company, there shall be no threatened litigation, action, proceeding, investigation or labor controversy, in each case by any Governmental Authority, other securityholder of the Company or other Person which purports to affect the legality, validity or enforceability of this Agreement or any of the Transaction Documents; and
(x) no default or event of default shall (A) have occurred and be continuing under any Note Document, the Credit Facility, any loan or collateral document in connection therewith or either Indenture or (B) result from the issuance of the Second Lien Notes, the entry into any Transaction Document or the consummation of the Exchange Transaction or the other transactions contemplated under this Agreement on or any Transaction Document.
(c) The obligation of the Company to effect the Exchange Transaction, and to execute and deliver documents at the Closing is subject to the satisfaction at or prior to the Closing Date.of the following additional conditions:
(i) the representations and warranties of each Noteholder contained in Section 3(a) hereof shall be true and correct in all respects, and all other representations and warranties of each Noteholder contained in Section 3 hereof shall be true and correct in all material respects, on and as of the date hereof and as of the Closing, with the same force and effect as though made on and as of such date (except to the extent any representation or warranty includes the word “material,” Material Adverse Effect or words of similar import, with respect to which such representation or warranty, or applicable portions thereof, must have been true and correct in all respects);
(ii) nStor each Noteholder shall have delivered to ▇▇▇▇▇ any and all approvalsthe Company, consents or assignments in accordance with Section 2(b) hereof, each of the items required to be obtained delivered by nStor and necessary for the consummation of the transactions contemplated hereby.such Noteholder pursuant to Section 2(b); and
(iii) There each Noteholder shall not have been institutedperformed or complied with, pending in all material respects, its covenants required to be performed or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any complied with as of the transactions contemplated by Closing under this Agreement, except for the covenants set forth in Section 2(b) hereof which each Noteholder shall have performed and complied with in all respects.
Appears in 2 contracts
Sources: Exchange Agreement (Northern Oil & Gas, Inc.), Exchange Agreement (TRT Holdings Inc)
Conditions to Closing. (a) nStorBuyer's obligation to consummate the transactions contemplated to be performed by this Agreement shall be it in connection with the Closing is subject to the fulfillment, at satisfaction or prior to Closing, of each waiver of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions:
(i) ▇▇▇▇▇ the representations and warranties set forth in Section 3 above shall be true in all respects at and as of the Closing Date;
(ii) Seller shall have performed all of the obligations and complied with all of the his covenants required hereunder to be performed or to be complied with by them under this Agreement on at or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and in all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.respects;
(iii) nStor and its accountantsno action, attorneys and other representatives suit, or proceeding shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, be pending or threatened against Andatacobefore any court or quasi-judicial or administrative agency of any federal, ▇▇▇▇▇state, nStor local, or the Company foreign jurisdiction or before any suitarbitrator wherein an unfavorable injunction, action judgment, order, decree, ruling, or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit charge would (A) prevent consummation of any of the transactions contemplated by this Agreement., or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(viiv) ▇. ▇▇▇▇▇ the Agreement and General Release of All Claims dated the date hereof between Seller and the Company (as the same may be amended by the parties thereto in accordance with the terms thereof, the "AGREEMENT AND GENERAL RELEASE") shall be in full force and effect (without revocation of any part thereof), and Seller shall be in full compliance with his obligations under such Agreement and General Release; and
(v) Seller shall have entered into Employment Agreement as provided for delivered certificates representing the Company Stock, duly endorsed in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Dateblank or with duly executed stock powers attached.
(b) The obligations of ▇▇▇▇▇ Seller to consummate the transactions contemplated to be performed by this Agreement shall be him or it in connection with the Closing are subject to the fulfillment, at satisfaction or prior to Closing, of each waiver of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):conditions:
(i) nStor the representations and warranties set forth in Section 4 above shall be true in all respects at and as of the Closing Date;
(ii) Buyer shall have performed all of its obligations and complied with all of its covenants required hereunder to be performed or to be complied with by it under this Agreement on at or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and in all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.respects;
(iii) There no action, suit, or proceeding shall not have been instituted, be pending or threatened against Andatacobefore any court or quasi-judicial or administrative agency of any federal, ▇▇▇▇▇state, nStor local, or the Company foreign jurisdiction or before any suitarbitrator wherein an unfavorable injunction, action judgment, order, decree, ruling, or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); and
(iv) Buyer shall have delivered payment in full of the Purchase Price in accordance with Section 1 hereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Pincourt a Kenneth Jr), Stock Purchase Agreement (Todhunter International Inc)
Conditions to Closing. (a) nStor's obligation The obligations of Purchaser to consummate proceed with the transactions contemplated by this Agreement Closing shall be subject to the fulfillment, at or prior to Closing, satisfaction of each of the following conditions precedent (any or all unless the satisfaction of which may be such condition is waived by Purchaser in writing, in whole or in part, by nStor)::
(ia) ▇▇▇▇▇ shall have performed all The representations and warranties of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ Seller contained in this Agreement shall be true and correct both in all material respects at and as of the date on which this Agreement is signed hereof, and at and as of the Closing Date Closing, as if made anew at and as of such time.
(viii) There has not been any , and Seller shall have duly performed and complied in all material adverse change in respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by Seller on or before the businessClosing, operations and financial conditions of Andataco from and after Seller shall have delivered a certificate to that effect at the date of the 1998 10-K until the Closing Date.Closing;
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement Purchaser shall be subject have been provided with full and complete access to the fulfillment, at or prior to Closing, of each books and records of the following conditions precedent (any or all Company and its subsidiaries for purposes of which may be waived in writingconducting a due diligence investigation, and Purchaser shall have completed such due diligence investigation and been satisfied, in whole or in partits sole discretion, by ▇▇▇▇▇):with the results of such due diligence investigation;
(ic) nStor Purchaser shall have performed all of its obligations and complied with all of its covenants required to be performed given any notices or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ made any and all filings with the Kentucky Department of Financial. Institutions, the Federal Deposit Insurance Corporation, the Board of Governors of the Federal Reserve System, and any and all other federal or state regulatory authorities as may be necessary to obtain any and all consents or approvals, consents orders, letters or assignments to statements of non-objection, as may be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.herein (the “Regulatory Approvals”), and all such Regulatory Approvals shall have been obtained on terms satisfactory to Purchaser in its sole discretion;
(iiid) All waivers, consents and approvals of every person necessary or appropriate for the consummation of the transactions contemplated herein shall have been obtained;
(e) There shall not have been instituteda material adverse change in the financial condition, pending assets, liabilities, obligations, properties, business or prospects of the Company or any of its subsidiaries; and
(f) There shall not be in effect any federal or state law, rule or regulation or any order or decision of a court of competent jurisdiction, or, any proceeding commenced by or before any court or governmental agency or authority in the United States, or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party governmental agency or governmental agencyauthority in the United States, commission, bureau that prevents or body seeking to restrain or prohibit any materially delays the consummation of the transactions contemplated by herein or which challenges or seeks to prevent or delay the consummation of the transactions contemplated herein or which could impose material limitations on the ability of Purchaser to exercise full rights of ownership of the Shares following the Closing.
(g) Purchaser and/or any affiliates of Purchaser shall have entered into agreements with other shareholders of the Company on terms and conditions which are the same or substantially similar to the terms and conditions of this Agreement, pursuant to which Purchaser and/or any affiliates of Purchaser will have the right to purchase not less than 51% of the issued and outstanding common stock of the Company.
Appears in 2 contracts
Sources: Option Agreement (Porter Bancorp, Inc.), Option Agreement (Porter Bancorp, Inc.)
Conditions to Closing. (a) nStor's obligation The obligations of the Standby Purchaser to consummate the transactions contemplated by this Agreement shall be hereunder are subject to the fulfillment, at or prior to Closingor on each Closing Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions:
(i) ▇▇▇▇▇ The representations and warranties of the Company in Section 4 shall be true and correct as of the date hereof and at and as of each Closing Date as if made on such date (except for representations and warranties made as of a specified date, which shall be true and correct as of such specified date) and the Company shall have performed all of the its obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.hereunder;
(ii) ▇▇▇▇▇ Subsequent to the execution and delivery of this Agreement and prior to each Closing Date, there shall not have delivered to nStor been any and all approvalsMaterial Adverse Effect, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation nor shall there have occurred any breach of any covenant of the transactions contemplated hereby.Company set forth in Section 7 hereof;
(iii) nStor and its accountantsAs of each Closing Date, attorneys and other representatives trading in the Common Stock shall not have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.been suspended by the Commission or Nasdaq Global Market or trading in securities generally on the Nasdaq Global Market shall not have been suspended or limited or minimum prices shall not have been established on the Nasdaq Global Market ; and
(iv) nStor The Company and the Standby Purchaser shall have received obtained any required federal, state and regulatory approvals for the nStor Financing Rights Offering (including the KH Basic Rights Purchase) and Standby Offering on or prior conditions reasonably satisfactory to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.Standby Purchaser;
(b) The obligations of ▇▇▇▇▇ the Company and the Standby Purchaser to consummate the transactions contemplated by this Agreement shall be hereunder are subject to the fulfillment, at or prior to Closingor on each Closing Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):conditions:
(i) nStor No judgment, injunction, decree, regulatory proceeding or other legal restraint shall prohibit, or have performed all the effect of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvalsrendering unachievable, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
Rights Offering (iii) There shall not have been institutedincluding the KH Basic Rights Purchase), pending or threatened against Andataco, ▇▇▇▇▇, nStor the Standby Offering or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the material transactions contemplated by this Agreement;
(ii) No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or otherwise shall have been complied with; and
(iii) The Shares issued in the Rights Offering (including the KH Basic Rights Purchase) and the Standby Offering shall have been authorized for listing on the Nasdaq Global Market prior to the issuance of such Shares.
Appears in 2 contracts
Sources: Standby Purchase Agreement (Kien Huat Realty III LTD), Standby Purchase Agreement (Empire Resorts Inc)
Conditions to Closing. (a) nStor's The obligation of each Subscriber hereunder to consummate purchase the transactions contemplated by this Agreement shall be Units at the Closing is subject to the fulfillmentsatisfaction, at or prior to Closingbefore the applicable Closing Date, of each of the following conditions, provided that these conditions precedent (any or all of which are for each Subscriber’s sole benefit and may be waived by such Subscriber at any time in writing, in whole or in part, its sole discretion by nStor):providing the Company with prior written notice thereof:
(i) ▇▇▇▇▇ shall have performed all The representations and warranties of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at in all material respects as of the date on which this Agreement is signed and at when made and as of the Closing Date as if though originally made anew at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct in all material respects as of such time.date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date. Such Subscriber shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Subscriber in the form reasonably acceptable to such Subscriber;
(viiiii) There has not been any material adverse change The Company shall have duly executed and delivered to such Subscriber each of the Offering Documents, except for the certificates representing the Shares, Class A Warrants, Class B Warrants and Class C Warrants, which shall be delivered in accordance with Section 1(c);
(iii) Such Subscriber shall have received the opinion of the Company’s counsel, dated as of the Closing Date, in the business, operations and financial conditions of Andataco from and after form reasonably acceptable to such Subscriber;
(iv) Since the date of first execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect;
(v) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the 1998 10-K until consummation of any of the Closing Date.transactions contemplated by the Offering Documents;
(vi) The Company shall have delivered to such Subscriber such other documents, instruments or certificates relating to the transactions contemplated by this Agreement as such Subscriber or its counsel may reasonably request; and
(b) The obligations of ▇▇▇▇▇ the Company to consummate effect the transactions contemplated by this Agreement shall be with each Subscriber are subject to the fulfillment, fulfillment at or prior to Closing, of each Closing Date of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):listed below:
(i) nStor The representations and warranties made by such Subscriber in Section 2 shall have performed be true and correct in all material respects at the time of its obligations Closing as if made on and complied with all as of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.such date; and
(ii) nStor shall have delivered to ▇▇▇▇▇ any All corporate and all approvals, consents or assignments other proceedings required to be obtained undertaken by nStor and necessary for the consummation of such Subscriber in connection with the transactions contemplated herebyhereby shall have occurred and all documents and instruments incident to such proceedings shall be reasonably satisfactory in substance and form to the Company.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Subscription Agreement, Subscription Agreement (Originclear, Inc.)
Conditions to Closing. (a) nStor's obligation 8.1 Conditions to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillment, at or fulfillment prior to Closing, or at the Closing of each of the following conditions precedent (conditions, any one or all more of which may be waived by Purchaser in writingits sole discretion:
(a) On the Closing Date, there shall be no injunction, restraining order or decree of any nature of any court or governmental agency or body of competent jurisdiction that is in whole effect that restrains or in partprohibits the consummation of the transactions contemplated by this Agreement or any such injunction, restraining order or decree or any pending lawsuit, claim or legal action relating to the transactions contemplated by nStor):this Agreement which would materially adversely affect such transactions or Purchaser's ownership, use or enjoyment of the Business or any part thereof.
(i) ▇▇▇▇▇ All of the representations and warranties of Sellers, including those set forth in Section 8.1 (b)(ii) and (iii) below, contained in this Agreement or in any certificate, instrument or other document delivered to Purchaser pursuant hereto shall be complete, true and correct in all respects on and as of the Effective Date, with the same force and effect as though such representations and warranties had been made on and as of the Effective Date, except to the extent that any such representation and warranty is made as of a specified date, in which case, such representation and warranty shall have been true and correct as of such date;
(ii) The representations and warranties of Sellers contained in Sections 4.1, 4.2, 4.3, 4.8, 4.10, 4.11, 4.12, 4.15, 4.16, 4.17, 4.18, 4.20, 4.21, 4.22, 4.23, 4.25, 4.26 and 4.27 of this Agreement or in any certificate, instrument or other document delivered to Purchaser pursuant hereto shall be complete, true and correct in all respects on the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that any such representation and warranty is made as of a specified date, in which case, such representation and warranty shall have been true and correct as of such date; and
(iii) To the Knowledge of Sellers, the representations and warranties contained in Section 4.9 of this Agreement or in any certificate, instrument or other document delivered to Purchaser pursuant hereto shall be complete, true and correct in all respects on the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that any such representation and warranty is made as of a specified date, in which case, such representation and warranty shall have been true and correct as of such date.
(c) Sellers shall have performed in all of the material respects all obligations and agreements and complied in all material respects with all of the covenants required contained in this Agreement to be performed or to be and complied with by them under this Agreement on or prior to or on the Closing Date.
(iid) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor Purchaser shall have received the nStor Financing on or prior to a certificate, dated the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, an authorized officer of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior Sellers to the Closing Dateeffect that the conditions specified in (b) and (c) above have been fulfilled.
(iie) nStor The Transition Services Agreement, attached as Exhibit B hereto, shall have been executed and delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated herebyparties thereto.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Southern California Microwave Inc), Asset Purchase Agreement (L 3 Communications Holdings Inc)
Conditions to Closing. (a) nStor's The obligation of Purchasers to consummate the transactions contemplated Closing is subject to the following conditions unless waived in writing by the Purchasers:
(i) The representations and warranties of the Company contained in this Agreement shall be subject to the fulfillmenttrue and correct in all material respects (other than representations and warranties with a Material Adverse Effect qualifier, at or prior to Closing, of each which shall be true and correct as written) on and as of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ Closing Date and the Company shall have performed complied in all of the obligations and complied material respects with all of the covenants required agreements and satisfied all conditions on its part to be performed or to be complied with by them under this Agreement on satisfied hereunder at or prior to the Closing Date.
(ii) ▇▇▇▇▇ No Event of Default or breach of any covenant under this Agreement or the Transaction Documents shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated herebyoccurred.
(iii) nStor and The Company shall be current in all of its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andatacopublic filings.
(iv) nStor shall have received None of the nStor Financing on issuance and sale of the Securities pursuant to this Agreement or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by any of the other Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued in respect thereof; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or, to the Company's knowledge, threatened against the Company or against Purchaser relating to the issuance of the Securities or Purchasers' activities in connection therewith or any other transactions contemplated by this Agreement, the other Transaction Documents or the Disclosure Documents.
(vib) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for The obligation of the Company to consummate the Closing is subject to the condition (unless waived in Section 3(awriting by the Company) hereof.
(vii) Each representation that the representations and warranty warranties of ▇▇▇▇▇ the Purchasers contained in this Agreement shall be true and correct both at the date in all material respects (other than representations and warranties with a Material Adverse Effect qualifier, which shall be true and correct as written) on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor Purchasers shall have performed complied in all of its obligations and complied material respects with all of its covenants required agreements and satisfied all conditions on their part to be performed or to be complied with by it under this Agreement on satisfied hereunder at or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Subscription Agreement (Interactive Television Networks), Subscription Agreement (Interactive Television Networks)
Conditions to Closing. (a) nStor7.1 The Buyer's obligation to consummate complete the transactions contemplated by this Agreement shall be subject to herein are conditional upon the fulfillment, at or prior to Closing, of each fulfillment of the following conditions precedent (any or all as of which may be waived in writing, in whole or in part, by nStor):the Closing:
(ia) ▇▇▇▇▇ shall have performed all the representations and warranties of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained Seller in this Agreement shall be true in all material respects as of the Closing;
(b) the covenants of the Seller and correct both at the date on which conditions for the benefit of the Buyer in this Agreement is signed to be performed, observed and at satisfied prior to and as of the Closing Date as if made anew at shall have been performed, observed and satisfied in all material respects as of such time.the Closing;
(viiic) There the receipt by the Buyer and the Seller of all required approvals for this Agreement and the transactions contemplated herein;
(d) between the date hereof and the Closing, there exists no current, pending or threatened Legal Proceeding that has not or could have the effect of preventing, restricting or placing conditions unacceptable to the Buyer in its sole discretion on (i) the transfer to the Buyer of the Acquired Assets free and clear of all liens, charges and encumbrances; and (ii) the completion of any other transaction contemplated herein; and
(e) between the date hereof and the Closing, there has been any no material adverse change in the businessAcquired Assets, operations and financial the foregoing conditions of Andataco from and after shall be for the date exclusive benefit of the 1998 10Buyer and may be waived by it in whole or in part without prejudice to the non-K until fulfillment of any other conditions for the Closing Datebenefit of the Buyer or any rights or remedies available to the Buyer at law or in equity.
7.2 The Seller's obligation to complete the transactions contemplated herein are conditional upon the fulfillment of the following conditions as of the Closing:
(a) the representations and warranties of the Buyer in this Agreement shall be true in all material respects as of the Closing;
(b) The obligations the covenants of ▇▇▇▇▇ the Buyer and the conditions for the benefit of the Seller in this Agreement to consummate be performed, observed and satisfied prior to and as of the Closing shall have been performed, observed and satisfied in all material respects as of the Closing;
(c) the receipt by the Buyer and the Seller of all required approvals for this Agreement and the transactions contemplated by this Agreement herein, and the foregoing conditions shall be subject to for the fulfillment, at or prior to Closing, of each exclusive benefit of the following conditions precedent (any or all of which Seller and may be waived in writing, by the Seller in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior part without prejudice to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ non-fulfillment of any and all approvals, consents or assignments to be obtained by nStor and necessary other conditions for the consummation benefit of the transactions contemplated herebySeller or any rights or remedies available to the Seller at law or in equity.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Asset Acquisition Agreement, Asset Acquisition Agreement
Conditions to Closing. (ai) nStor's The obligation of Seller to consummate proceed with the transactions contemplated by this Agreement shall be Closing is subject to the fulfillment, at satisfaction on or prior to Closing, the Closing Date of each all of the following conditions precedent (conditions, any one or all more of which may be waived by Seller in writing, in whole or in part, by nStor)::
(A) All of the conditions of the MLP Parties to the consummation of the Merger (other than completing the transactions referred to in this Section 2.1) shall have been satisfied or waived; and
(B) (i) ▇▇▇▇▇ The representations and warranties of Buyer set forth in Section 3.2 shall be true and correct in all material respects (without regard to any materiality qualifiers set forth therein) as of the Closing Date, as if remade on such date (except for representations and warranties made as of a specific date, which shall be true and correct as of such specific date), and Buyer shall have performed all of the its obligations hereunder in all material respects, and complied with all (ii) Seller shall have received a certificate, dated as of the covenants required Closing Date, of an executive officer of Buyer certifying to be performed or the matters set forth in this Section 2.1(c)(i)(B).
(ii) The obligation of Buyer to be complied proceed with by them under this Agreement the Closing is subject to the satisfaction on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and Date of all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (conditions, any one or all more of which may be waived by Buyer in writing, in whole or in part, by ▇▇▇▇▇)::
(A) All of the conditions of the Buyer Parties (as defined in the Merger Agreement) to the consummation of the Merger (other than completing the transactions referred to in this Section 2.1) shall have been satisfied or waived;
(B) (i) nStor The representations and warranties of Seller set forth in Section 3.1 (other than those set forth in Section 3.1(m)) shall be true and correct in all material respects (without regard to any materiality qualifiers set forth therein) as of the Closing Date, as if remade on such date (except for representations and warranties made as of a specific date, which shall be true and correct as of such specific date), and Seller shall have performed all of its obligations hereunder in all material respects, and complied with all (ii) Buyer shall have received a certificate, dated as of its covenants required the Closing Date, of an executive officer of Seller certifying to the matters set forth in this Section 2.1(c)(ii)(B);
(C) The representation and warranty of Seller set forth in Section 3.1(m) shall be true and correct as of the Closing Date, as if remade on such date, except where the failure of such representation and warranty to be performed or true and correct would not, in the aggregate, result in an MLP Material Adverse Effect, and (ii) Buyer shall have received a certificate, dated as of the Closing Date, of an executive officer of Seller certifying to be complied with by it the matters set forth in this Section 2.1(c)(ii)(C); and
(D) All outstanding debt of Seller, including all principal, accrued and unpaid interest and fees under this Agreement on the Seller Credit Facility, shall have been paid off as of or prior to the Closing DateClosing.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Purchase Agreement (Plains All American Pipeline Lp), Purchase Agreement (Pacific Energy Partners Lp)
Conditions to Closing. (a) nStor's 5.1 Buyers’ obligation to consummate the transactions contemplated by this the Agreement shall be subject to is conditional on the fulfillment, at Competition and Markets Authority of the United Kingdom having granted or prior to given approval for Closing, and all applicable waiting periods specified under applicable laws, the expiration of each which are necessary for such approvals, having passed.
5.2 In addition to Clause 5.1, Buyers’ obligation to consummate the transactions contemplated by the Agreement is conditional on the satisfaction of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStortheir satisfaction subject only to Closing):
(ia) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required items set forth in Schedule 5.2(a) having been delivered to be performed or Buyers having been delivered to be complied with by them under this Agreement on or prior to the Closing Date.Buyers;
(iib) ▇▇▇▇▇ the Restructuring having been unconditionally consummated in accordance with Schedule 1.5;
(c) the Seller shall have delivered the Carve-Out Audited Financial Statements to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.Buyers in accordance with Clause 6.6.1;
(iiid) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records each of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be Sellers’ Warranties being true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew given by Seller at and as of such time.the Closing Date in each case except for breaches as to matters that, individually or in the aggregate, would not reasonably be expected to result in a liability equal to or in excess of USD 12,500,000 or that have been fully remedied as of the Closing Date or that relate to an Excluded Loss;
(viiie) There no Excluded Loss described in subsections (a), (b), or (h) of such definition is reasonably foreseeable or has not been any material adverse change in the business, operations and financial conditions incurred as of Andataco from and after the date of the 1998 10-K until the Closing Date, except for Excluded Losses that, individually or in the aggregate, could not reasonably be expected to result in a Loss equal to or in excess of the amount set forth in Schedule 5.2(e) or that have been fully remedied as of the Closing Date;
(f) no material breach of the Seller’s obligations in Clause 6 having occurred; and
(g) no Material Adverse Effect having occurred.
(b) The obligations of ▇▇▇▇▇ 5.3 Buyers have the right to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, waive at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writingtimes, in whole or in part, by ▇▇▇▇▇):any of the conditions set forth in Clause 5.2.
(i) nStor 5.4 Buyers shall have performed all use their reasonable efforts to ensure the satisfaction of its obligations the condition set forth in Clause 5.1 as soon as practicably possible after the date of the Agreement and complied in any event no later than 5 Business Days after the date of the Agreement. Buyers will prepare the necessary notifications and file such notifications with all the relevant competition authorities promptly following the date of its covenants required this Agreement. Prior to be performed filing, Buyers shall provide Seller with a reasonable opportunity to provide comments on drafts of any filings or to be complied with by it under this Agreement on or other material documentation prior to their submission to the Closing Datecompetition authorities (it being acknowledged that certain such drafts and/or documents may be shared on a confidential outside counsel to counsel basis only) and to take account of any reasonable comments. Seller shall, and shall procure that the Acquired Companies will, use their reasonable efforts to give all requested information and assistance reasonably requested by Buyers in order to facilitate Buyers’ preparation of the notifications as well as the satisfaction of the condition set forth in Clause 5.1 above.
(ii) nStor shall have delivered to ▇▇▇▇▇ 5.5 If any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall competition authorities is not have been instituted, pending prepared to give approval or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking clearance to restrain or prohibit any of the transactions contemplated by this Agreement, or any such approval or clearance will only be given upon the fulfilment of conditions and obligations e.g. the sale, divestiture, license, or disposition of any necessary assets or businesses of Buyer, any of its Affiliates or the Acquired Companies (“Remedies”), Buyers shall accept, and shall cause their Affiliates to accept Remedies required to obtain approvals or clearances from the competition authorities provided that such Remedies do not result, or is likely to result, in a loss of annual sales exceeding USD 40 million for Buyer, its Affiliates and/or the Acquired Companies following Closing.
5.6 Seller shall take all reasonable actions to ensure the satisfaction of the conditions set forth in Clause 5.2 (a) through (c), as soon as reasonably practicable after the date of the Agreement. Each of the Parties shall, and Seller shall procure that the Acquired Companies will, give all information and assistance reasonably required in order to facilitate the satisfaction of said conditions.
5.7 If the conditions in this Clause 5 have not been fulfilled, or waived by Buyers, on or before the Long Stop Date, Buyers may, in their sole discretion either (i) extend the above longstop date by an additional 20 Business Days, or (ii) immediately terminate the Agreement and the transactions contemplated hereby in which case, subject to Clause 5.8, all obligations of the Parties under the Agreement shall terminate without further liability whatsoever of any Party against the other and each Party will pay all its own costs and expenses.
5.8 If the Agreement is terminated by Buyers pursuant to Clause 5.7 as a result of the failure by Seller to fulfil, or to ensure such fulfilment by the Acquired Companies, a condition set forth in this Clause 5 or to perform a covenant, obligation or undertaking contained in the Agreement, Seller shall be fully liable for all Losses incurred or suffered as a result of that failure or breach.
5.9 The provisions of this Clause 5 (Conditions to Closing) and Clauses 20-22 (Announcements and confidentiality restrictions, Miscellaneous and Disputes and governing law) shall survive the termination of the Agreement pursuant to this Clause 5.
Appears in 2 contracts
Sources: Share Sale and Purchase Agreement, Share Sale and Purchase Agreement (Ampco Pittsburgh Corp)
Conditions to Closing. (a) nStor's The following conditions are precedent to B▇▇▇▇’s obligation to consummate proceed with the transactions contemplated by this Agreement shall be subject to applicable Closing (collectively, the fulfillment“Buyer’s Conditions Precedent”). If any of Buyer’s Conditions Precedent are not satisfied as and when described below then, at or prior to Closing, unless the failure of each of the following conditions precedent (any or all of which may be waived in writingsuch condition constitutes a Seller default, in whole or in partwhich case the provisions of Section 16 shall control, Buyer may elect, by nStor):
written notice to Seller, in Buyer’s sole and absolute discretion, either to (i) extend the Closing (and Outside Completion Date) from time to time until the Buyer’s Conditions Precedent are satisfied to Buyer’s satisfaction, (ii) waive that Buyer’s Condition Precedent and proceed to Closing with a reduction in the Purchase Price by an amount equal to the costs to be incurred by Buyer to perform the work for such Buyer’s Condition Precedent, or (iii) to terminate this Agreement, whereupon the Title Company shall immediately return to Buyer the E▇▇▇▇▇▇ Money previously deposited by Buyer and not previously credited to the purchase price for a prior closing, and, thereafter, the parties shall have performed all of the no further rights or obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on Agreement, except for those that expressly survive the termination of this Agreement.
i. On or prior to the Closing Date.
(ii) expiration of the Inspection Period, Buyer shall have obtained the written approval of the Buyer’s asset management committee, for B▇▇▇▇’s continued performance of this Agreement. B▇▇▇▇’s delivery of the properly executed Continuation Notice shall constitute satisfaction of this Buyer’s Condition Precedent. Any Amendments to this Agreement that occur after a properly executed Continuation Notice has been delivered as described herein must be ratified by one of the following individuals before the Amendment is effective and enforceable against Buyer: L▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) J▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇▇▇ contained or C▇▇▇ ▇▇▇▇▇▇.
ii. The Final Plat approved by Buyer for the applicable Section of Lots shall have been recorded.
iii. As of the applicable Closing Date, all of Seller’s representations and warranties set forth in this Agreement shall be true and correct both at correct.
iv. On or prior to the date on which applicable Closing Date, Seller shall not be in default of, and shall have performed and complied in all respects with all obligations and agreements required in this Agreement is signed and at and to be performed or complied with by Seller.
v. As more particularly provided in Section 14 below, as of the applicable Closing Date no moratorium prohibition restricting or precluding the issuance of building permits or certificates of occupancy shall have been enacted by the City or any other Governmental Authorities, unless the same has been waived by Buyer as if made anew at and a Buyer’s Condition Precedent as of such timeprovided therein.
(viii) There has not been any material adverse vi. As more particularly provided in Section 14 below, no casualty or other change in the businessProperty has occurred and no condemnation action have been threatened, operations and financial conditions of Andataco from and after commenced or completed, unless the date same has been waived by Buyer as a Buyer’s Condition Precedent as provided therein.
vii. Subject to the development of the 1998 10-K until Lots in accordance with this Agreement and any changes described in Section 14 below, the Property is substantially in the same condition that existed as of the expiration of the Inspection Period.
viii. On or prior to the applicable Closing Date, (i) good and indefeasible title to the Property can be conveyed by Seller, subject only to the Permitted Exceptions, as more specifically provided in Section 6 above, and (ii) the Title Company shall be irrevocably committed to issue to Buyer the Owner’s Title Policy for the Property to be conveyed at Closing as required under this Agreement.
ix. On or prior to the applicable Closing Date, Seller will have caused all tenants and occupants to vacate the Property and all leases and occupancy agreements shall be terminated.
x. The Completion Date for the applicable Lots being purchased has occurred.
xi. Seller will have developed all of the applicable Lots as “finished” Lots, as defined in Section 10.1 (bsubject only to Buyer’s obligation to provide final grading of the Lots and Seller’s Post Completion Work).
xii. Seller shall have met the Development Scope and Specifications requirements of Buyer per Exhibit B-1 except for the Post Completion Work, and delivered Seller’s Completion Documents per Exhibit C.
xiii. If not already annexed, the Lots for such Closing shall be annexed and made subject to the Declaration prior to the applicable Closing.
xiv. Approval of B▇▇▇▇’s home architectural plans for the lots has been provided by the proper architectural review body pursuant to Section 7.3, provided that Buyer submits the Plans for approval by the deadline in Section 7.3. If any of Buyer’s Conditions Precedent have not been satisfied by the Outside Completion Date, then Buyer shall have the right to (i) The obligations of terminate this Agreement by written notice to Seller, whereupon the E▇▇▇▇▇▇ to consummate the transactions contemplated by this Agreement Money (or uncredited portion) shall be subject delivered to Buyer; (ii) waive in writing the fulfillment, at unsatisfied condition(s) and proceed with the applicable Closing; or prior to Closing, (iii) extend the Outside Completion Date for a maximum of each 90 days or a later date approved by Seller. If any of the following conditions precedent Buyer’s Conditions Precedent have not been satisfied by the date to which the Outside Completion Date is extended, then Buyer may exercise the rights set forth in clauses (i) or (ii) of the preceding sentence. The waiver of a Condition to Closing will not be deemed to be a waiver of any right to seek remedies as provided in this Agreement. If any of the Buyer’s Conditions Precedent have not been satisfied by the Outside Completion Date or by a scheduled Closing date or Seller is otherwise in default under this Agreement, then until all of which may be the Buyer’s Conditions Precedent have been satisfied or Seller’s default cured, as applicable, or the condition or default waived by Buyer in writing, Buyer’s obligation to purchase Lots in whole or in part, by ▇▇▇▇▇):
(i) nStor accordance with the takedown requirements of Section 4.2 shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇a▇▇▇▇ and the escalator for price per Lot provided for in Section 2 shall cease to accrue on any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
Lots that Closing is delayed. Additionally, before Buyer exercises its right to terminate under the first paragraph of Section 11.1 for failure of the Buyer’s Conditions Precedent, Buyer shall provide notice of termination to Seller and Seller shall have up to the earlier of (iiia) There sixty (60) days after Buyer’s delivery of the notice of termination or (b) the Outside Completion Date, to cure such failure, and if such failure is not cured within such time period, such termination shall not have been institutedtake effect upon the expiration of such time period, pending or threatened against Andataco, unless B▇▇▇▇ withdraws such termination notice in writing prior to the expiration of such cure period. Before Buyer can exercise its right to terminate under the first paragraph of Section 11.1 for failure of the Buyer’s Conditions Precedent listed in Section 11.1(xiii) Buyer shall provide notice of termination to Seller and Seller shall have up to the earlier of (a) thirty (30) days after Buyer’s delivery of the notice of termination or (b) the Outside Completion Date, to cure such failure, and if such failure is not cured within such time period, such termination shall take effect upon the expiration of such time period, unless B▇▇, nStor or ▇▇ withdraws such termination notice in writing prior to the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any expiration of the transactions contemplated by this Agreementsuch cure period.
Appears in 2 contracts
Sources: Contract for Purchase and Sale (Alset Inc.), Contract for Purchase and Sale (LiquidValue Development Inc.)
Conditions to Closing. Tenant and Landlord agree that the sale and purchase of the Leased Premises is subject to the satisfaction of the following contingencies and conditions within sixty (60) days of Tenant’s exercise of the Option, and if not so satisfied this Tenant may cancel and rescind the exercise of the Option and this Lease shall continue in full force and effect. Notwithstanding the foregoing, Tenant may, at its option, waive any of the conditions or contingencies set forth in this Section 21.6 and proceed to purchase the Leased Premises from Landlord.
(a) nStor's obligation to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any The Leased Premises and all approvals, consents or assignments to buildings and improvements located thereon will at Closing be obtained by ▇▇▇▇▇ in the same state of condition and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and repair as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of exercise of the 1998 10-K until the Closing DateOption.
(b) The obligations of ▇▇▇▇▇ to consummate That Tenant shall have approved the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each form and content of the following conditions precedent (any or all of which may be waived Title Commitment and the Survey in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor accordance with Sections 20.4 and 20.5. Premises shall have performed all remained in the state reflected by the Title Commitment and the Survey, as approved by Buyer, through the date of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing DateClosing.
(iic) nStor That Tenant shall have delivered approved the form and content of the special warranty deed conveying the Leased Premises to ▇▇▇▇▇ any Tenant, the vendor’s affidavit, the non-foreign certificate, the closing statement covering the purchase and sale of the Leased Premises, and all approvals, consents or assignments other documents and instruments required to be obtained by nStor and necessary for effect the consummation sale of the transactions contemplated hereby.
(iii) There Leased Premises and the agreements of the parties herein set forth; and Landlord shall not prepare such documents and instruments promptly upon notification by Tenant that all conditions precedent above set forth have been instituted, pending performed or threatened against Andataco, ▇▇▇▇▇, nStor waived. Landlord shall also furnish to Tenant such proof of authority as requested by Tenant or the Title Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking authorizing Landlord to restrain or prohibit any of the transactions contemplated by enter into and consummate this Agreementtransaction.
Appears in 2 contracts
Sources: Lease Agreement (Vera Bradley, Inc.), Lease Agreement (Vera Bradley, Inc.)
Conditions to Closing. (a) nStor's obligation to consummate Upon the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, terms and satisfaction of each of the following conditions precedent (any or all of which may be waived conditions, and in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of reliance upon the obligations representations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ warranties contained in this Agreement, the Company will sell and the Investor will buy the Notes and Warrants:
(A) Acceptance by the Investor of a satisfactory Secured Convertible Note Purchase Agreement (including all Exhibits annexed hereto) and due execution by all parties of this Agreement and the Exhibits annexed hereto;
(B) Delivery into escrow by the Company of the original Notes, and the original Warrants to be issued, as more fully set forth in the Escrow Agreement;
(C) All representations and warranties of the Company contained herein and in all Exhibits (and the representations and warranties of Petals, Inc. contained in the Security Agreement) annexed hereto shall be remain true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date as if made anew at and as of such time.Date;
(viiiD) There has not been any material adverse change The Investor shall have received an opinion of counsel substantially in the business, operations form of Exhibit G annexed hereto;
(E) The Company shall have obtained all permits and financial conditions of Andataco from qualifications required by any state for the offer and after the date sale of the 1998 10-K until Notes, and Warrants, or shall have the availability of exemptions therefrom. At the Closing Date., all laws and regulations to which the Company and the Investor are subject shall legally permit the sale and issuance of the Notes and Warrants;
(bF) The obligations Company and Petals, Inc. shall have executed the financing statements and Security Agreement (as set forth in Section 4.37 below) and authorized the Investor to file same with the proper state authorities in the states of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each New York and Delaware giving notice of the following conditions precedent (any or all of which may be waived Investor's exclusive security interest in writing, in whole or in part, by ▇▇▇▇▇):the Collateral;
(iG) nStor The Company shall have performed all authorized the payment of its obligations and complied with all fees out of its covenants required the escrowed proceeds pursuant to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.Section 12.7 below; and
(iiH) nStor The Company shall have delivered to ▇▇▇▇▇ any and all approvals, obtained consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated herebyCompany to participate in this transaction from any party necessary to complete this transaction.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Secured Convertible Note Purchase Agreement (Interiors Inc), Secured Convertible Note Purchase Agreement (Interiors Inc)
Conditions to Closing. (a) nStor's The obligation to consummate of the transactions contemplated by Placement Agent under this Agreement shall to purchase the Units will be subject to the fulfillment, at or following conditions:
(a) Subsequent to the date of this Agreement and prior to Closingthe Closing Date, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, of each the Company and its subsidiaries, taken as a whole, from that set forth in the Preliminary Offering Memorandum that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Units on the terms and in the manner contemplated in the Final Offering Memorandum.
(b) You shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the following conditions precedent (any or Company, to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of which the agreements and satisfied all of the conditions on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may be waived in writing, in whole or in part, by nStor):rely upon the best of his knowledge as to proceedings threatened.
(ic) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ shall have performed all of ▇▇▇▇ & ▇▇▇▇▇ LLP, independent counsel for the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to Company, dated the Closing Date, substantially to the effect set forth in Exhibit B.
(d) You shall have received on the Closing Date an opinion of Shearman & Sterling, counsel for the Placement Agent, dated the Closing Date, in form and substance satisfactory to you.
(e) You shall have received on the Closing Date opinions of (i) Shaw, Pittman, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, special U.S. federal regulatory counsel to the Company, (ii) ▇▇▇▇▇ shall have delivered ▇.▇. ▇▇▇▇▇▇▇▇▇, special U.S. state regulatory counsel to nStor any the Company, (iii) Bird & Bird, special U.K. and all approvalsEuropean Union regulatory counsel to the Company, consents or assignments to be obtained by (iv) ▇▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior ▇▇▇, special Belgian regulatory counsel to the Closing Date.
Company, (vvi) There shall not have been institutedDoser Amereller ▇▇▇▇▇, pending or threatened against Andatacospecial German regulatory counsel to the Company, and (vii) Salans, ▇▇▇▇▇▇▇▇▇ & Heilbronn, nStor or special French regulatory counsel to the Company any suitCompany, action or other proceeding by any private party or governmental agencyrespectively, commissiondated the Closing Date, bureau or body seeking to restrain or prohibit any substantially in the form of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof▇-▇, ▇-▇, ▇-▇, ▇-▇, C-5 and C-6, respectively.
(viif) Each representation You shall have received on each of the date hereof and warranty of the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to you, from ▇▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇▇▇▇ LLP, the Company's independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to consummate the transactions contemplated by this Agreement shall be subject underwriters with respect to the fulfillmentfinancial statements and certain financial information contained in or incorporated by reference into the Final Offering Memorandum.
(g) Each of the Transaction Documents shall have been (or shall, at or prior to simultaneously with the Closing, of each of be) executed and delivered by all parties thereto other than the following conditions precedent Placement Agent.
(any or all of which may be waived in writingh) Shearman & Sterling, in whole or in partcounsel for the Placement Agent, by shall have received $100,000 from ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇ ▇▇▇▇▇▇▇ any and all approvals& Co. Incorporated, consents or assignments to be obtained by nStor and necessary for the consummation on behalf of the transactions contemplated herebyCompany, by wire transfer in federal or other funds immediately available.
(iiii) There You shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or received such other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreementdocuments as you and your counsel shall reasonably request.
Appears in 2 contracts
Sources: Placement Agreement (Econophone Inc), Placement Agreement (Econophone Inc)
Conditions to Closing. 7.1 Conditions to ▇▇▇▇▇▇'▇ and Shareholders' Obligations. The obligations of ▇▇▇▇▇▇ and Shareholders to effect the Closing are subject to the satisfaction of the following additional conditions on or before the Closing Date:
(a) nStor's The representations and warranties set forth in Article 4 of this Agreement will be true and correct in all material respects as of the date hereof and at and as of the Closing Date as though then made;
(b) The Company shall have performed, in all material respects, each obligation and agreement and complied with each covenant to consummate be performed and complied with by it under this Agreement prior to the Closing Date;
(c) All consents by third party or governmental or regulatory agencies or otherwise that are required to be obtained by the Company for the consummation of the transactions contemplated by described herein will have been obtained;
(d) No action or proceeding before any court or governmental body will be pending or threatened wherein a judgment, decree, injunction or order would prevent any of the transactions described herein or cause such transactions to be declared unlawful or rescinded;
(e) At the Closing, the Company shall have delivered or caused to be delivered to ▇▇▇▇▇▇, on behalf of the Shareholders, the following:
(i) a certificate executed on behalf of the Company stating that the conditions set forth in Sections 7.1(a) through (d) of this Agreement have been satisfied;
(ii) resolutions duly adopted by the Company's Board of Directors authorizing and approving the Agreement and the execution, delivery and performance of this Agreement;
(iii) good standing for the Company from the Secretary of State of the State of Florida, dated not earlier than five days prior to the Closing Date;
(iv) a copy of the Company's Restated and Amended Articles of Incorporation certified as of a recent date by the Secretary of State of the State of Florida;
(v) an incumbency certificate of the officers of the Company;
(vi) b the Company shall have caused such person as directed by ▇▇▇▇▇▇ on behalf of Globaltron to be appointed as a director of Company upon closing; and
(vii) such other documents as Globaltron and ▇▇▇▇▇▇ may reasonably request in connection with the transactions described herein.
7.2 Conditions to the Obligations of the Company. The obligations of the Company to effect the Closing are subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any on or all of which may be waived in writing, in whole or in part, by nStor):before the Closing Date:
(ia) The representations and warranties set forth in Article 2 and Article 3 of this Agreement will be true and correct in all material respects as of the date hereof and at and as of the Closing Date as though then made;
(b) ▇▇▇▇▇▇ and the Shareholders shall have performed performed, in all of the obligations material respects, each obligation and agreement and complied with all of the covenants each covenant required to be performed or to be and complied with by them under this Agreement on or prior to the Closing Date;
(c) All consents by any third party or governmental or regulatory agencies or otherwise that are required to be obtained by Globaltron and the Shareholders for the consummation of the transactions described herein will have been obtained.
(iid) No action or proceeding before any court or governmental body will be pending or threatened wherein a judgment, decree, injunction or order would prevent any of the transactions described herein or cause such transactions to be declared unlawful or rescinded;
(e) On the Closing Date, ▇▇▇▇▇▇ shall have delivered to nStor any the Company the following:
(i) a certificate executed on behalf of Globaltron and the Shareholders stating that the conditions set forth in Sections 7.2(a) through (d) of this Agreement have been satisfied;
(ii) a good standing certificate for Globaltron from the Secretary of State of the State of Florida, dated not earlier than five days prior to the Closing Date;
(iii) a copy of Globaltron's Articles of Incorporation certified as of a recent date by the Secretary of State of the State of Florida; and
(iv) copies of letter executed by all approvals, consents or assignments to be obtained by Shareholders appointing ▇▇▇▇▇▇ as agent and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.attorney-in-fact
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or such other documents as the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of may reasonably request in connection with the transactions contemplated by this Agreementdescribed herein.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Morgan Gary D), Stock Purchase Agreement (Win Gate Equity Group Inc)
Conditions to Closing. (a) nStor's obligation 7.1 The obligations of the Purchaser to consummate effect the transactions contemplated by this Agreement hereby shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (conditions, any one or all more of which may be waived in writing, writing by the Purchaser in whole or in part, by nStor):
: (ia) ▇▇▇▇▇ shall have performed all each of the obligations representations and complied with all warranties of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ Sellers contained in this Agreement shall be true and correct both at in all material respects, when made and as of the date Closing Date, with the same effect as though such representations and warranties had been made on which this Agreement is signed and at and as of the Closing Date (except as if made anew at and as of such time.
(viii) There has not been any material adverse contemplated or permitted by this Agreement to change in the business, operations and financial conditions of Andataco from and after between the date of the 1998 10-K until this Agreement and the Closing Date.
); (b) the Sellers shall have performed and complied in all material respects with all agreements, covenants, obligations and conditions required by this Agreement to be performed or complied with by the respective Sellers at or prior to the Closing Date; (c) the Sellers shall have delivered to the Purchaser certificates, in genuine and unaltered form, representing all of the Sellers’ Shares duly endorsed in blank, for transfer to the Purchaser, or arranged to take such steps, as may be necessary to transfer to the Purchaser any of Sellers’ Shares in electronic book entry form; and (d) the Sellers shall have delivered to the Purchaser such other agreements, documents and instruments reasonably requested by the Purchaser to effectuate the transactions contemplated hereby.
7.2 The obligations of ▇▇▇▇▇ the Sellers to consummate effect the transactions contemplated by this Agreement hereby shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (conditions, any one or all more of which may be waived in writing, writing by the respective Sellers in whole or in part: (a) each of the representations and warranties of the Purchaser contained in this Agreement shall be true and correct in all material respects, when made and as of the Closing Date, with the same effect as though such representations and warranties had been made on and as of the Closing Date (except as contemplated or permitted by ▇▇▇▇▇):
this Agreement to change between the date of this Agreement and the Closing Date); (ib) nStor the Purchaser shall have performed and complied in all of its material respects with all agreements, covenants, obligations and complied with all of its covenants conditions required by this Agreement to be performed or to be complied with by it under this Agreement on the Purchaser at or prior to the Closing Date.
; and (iic) nStor the Purchaser shall have delivered to ▇▇▇▇▇ any the Sellers such other agreements, documents and all approvals, consents or assignments instruments reasonably requested by the respective Sellers to be obtained by nStor and necessary for the consummation of effectuate the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Seligman Select Municipal Fund Inc), Stock Purchase Agreement (Seligman Select Municipal Fund Inc)
Conditions to Closing. (a) nStor's obligation 3.2.1 The obligations of each of the Company and the Subscriber to consummate the transactions contemplated by this Agreement Closing shall be subject to the fulfillmentsatisfaction or valid waiver by the Company, at on the one hand, or prior to Closingthe Subscriber, on the other, of each of the following conditions precedent (any or all of which may be waived in writingthat, in whole or in part, by nStor):on the Closing Date:
(i) ▇▇▇▇▇ No suspension of the qualification of the Common Stock for offering or sale or trading in any jurisdiction, or initiation or threatening of any proceedings for any of such purposes, shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Dateoccurred.
(ii) ▇▇▇▇▇ No governmental authority shall have delivered to nStor enacted, issued, promulgated, enforced or entered any judgment, order, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and all approvals, consents has the effect of making consummation of the transactions contemplated hereby illegal or assignments to be obtained by ▇▇▇▇▇ and necessary for the otherwise preventing or prohibiting consummation of the transactions contemplated hereby.
(iii) nStor Each of the Company and its accountantsthe Subscriber acknowledge the Common Stock ownership and issuance limitations set forth in Section 3.1(i) above and agree that in no event shall such limitations be exceeded by either this Subscription Agreement or as a result of the Other Subscription Agreements, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andatacoif any.
(iv) nStor 3.2.2 The obligation of the Company to consummate the Closing shall have received be subject to the nStor Financing satisfaction or valid waiver by the Company of the additional conditions that, on or prior to the Closing Date.:
(vi) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any All representations and warranties of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ Subscriber contained in this Subscription Agreement shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date (other than those representations and warranties expressly made as if made anew at of an earlier date, which shall be true and correct in all material respects as of such timedate), and consummation of the Closing shall constitute a reaffirmation by Subscriber of each of the representations, warranties and agreements contained in this Subscription Agreement as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all respects as of such date).
(viiiii) There has not been any The Subscriber shall have performed or complied in all material adverse change in the business, operations respects with all agreements and financial conditions of Andataco from and after covenants required by this Subscription Agreement.
(iii) Since the date of this Subscription Agreement, no event, the 1998 10-K until the Closing Dateresult of which is a Subscriber Material Adverse Effect, shall have occurred that is continuing.
(b) 3.2.3 The obligations obligation of ▇▇▇▇▇ the Subscriber to consummate the transactions contemplated by this Agreement Closing shall be subject to the fulfillmentsatisfaction or valid waiver by the Subscriber of the additional conditions that, at or prior to Closingon the Closing Date:
(i) All representations and warranties of the Company contained in this Subscription Agreement shall be true and correct in all material respects as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all material respects as of such date), and consummation of the Closing shall constitute a reaffirmation by the Company of each of the following conditions precedent (any or all representations, warranties and agreements contained in this Subscription Agreement as of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing DateDate (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all respects as of such date).
(ii) nStor The Company shall have delivered to ▇▇▇▇▇ any performed or complied in all material respects with all agreements and all approvals, consents or assignments to be obtained covenants required by nStor and necessary for the consummation of the transactions contemplated herebythis Subscription Agreement.
(iii) There Since the date of this Subscription Agreement, no event, the result of which is a Material Adverse Effect, shall not have occurred that is continuing.
(iv) The report required to be made by SK geo centric Co., Ltd. to its principal creditor bank on overseas direct investments in accordance with the Foreign Exchange Transactions Regulations of Korea shall have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding accepted by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreementsuch bank.
Appears in 2 contracts
Sources: Subscription Agreement, Subscription Agreement (PureCycle Technologies, Inc.)
Conditions to Closing. (a) nStor's 10.1 Seller’s obligation to consummate sell the transactions contemplated by this Agreement shall be MS Interest is subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (or simultaneous conditions, as applicable), any or all of which may be waived by Seller:
10.1.1 This Agreement shall be in writingfull force and effect and there shall not then exist any event which would allow Seller to terminate this Agreement pursuant to the express terms hereof;
10.1.2 Purchaser shall have paid to Seller the Purchase Price as directed by the Wiring Instruction Letter and shall have complied, in whole or in partall material respects, with its obligations under Article 4;
10.1.3 All required consents by nStor):
(i) ▇▇▇▇▇ Lender and of BofA to the Transactions contemplated hereby, including, without limitation, the transfer of the MS Interest to Purchaser and delivery by Lender of the Certificates, shall have performed all been obtained or completed;
10.1.4 All of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for Purchaser’s representations in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement Article 5 shall be true and correct both at the date in all material respects on which this Agreement is signed and at and as of the Closing Date as if made anew at on and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date;
10.1.5 Purchaser shall not be in default in any material respect under any covenant or agreement of Purchaser contained in this Agreement;
10.1.6 Purchaser shall pay, on the Closing Date, all Transfer Taxes due and owing as of the Closing Date pursuant to Section 12.1; and
10.1.7 All other conditions set forth in this Agreement to Seller’s obligation to close shall have been satisfied.
(b) The obligations of ▇▇▇▇▇ 10.2 Purchaser’s obligation to purchase the MS Interest and otherwise consummate the transactions contemplated by this Agreement shall be Closing hereunder, is subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (or simultaneous conditions, if applicable), any or all of which may be waived by Purchaser:
10.2.1 This Agreement shall be in writingfull force and effect and there shall not then exist any event which would allow Purchaser to terminate this Agreement pursuant to the express terms hereof;
10.2.2 Seller shall have complied, in whole or in partall material respects, by ▇▇▇▇▇):
(i) nStor shall have performed all of with its obligations and complied with all under Article 3;
10.2.3 All of its covenants required to be performed or to be complied with by it under Seller’s representations in this Agreement shall be true and correct in all material respects on or prior to and as of the Closing Date.;
(ii) nStor 10.2.4 Seller shall have delivered not be in default in any material respect under any covenant or agreement of Seller contained in this Agreement;
10.2.5 All required consents and the granting of associated releases by Lender and BofA to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
hereby shall have been obtained pursuant to documentation reasonably acceptable to Purchaser in both form and substance, and all conditions to the granting of such consents shall have been satisfied (iii) There for the avoidance of doubt, a Loan Modification shall not be a condition to Closing);
10.2.6 The Licenses shall have been institutedissued and shall be in full force and effect, pending or threatened against Andataco, ▇▇▇▇▇, nStor or customary bridging arrangements have been entered with respect to the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any preservation of the transactions contemplated by existing Licenses until the new Licenses or approvals are obtained, it being understood that this Agreementcondition shall be deemed satisfied if any License has been issued, but such license is subject to revocation, cancellation, suspension or non-renewal in the event that post-licensure requirements that have not been satisfied as of Closing are not completed subsequent to Closing; and
10.2.7 All other conditions set forth in this Agreement to Purchaser’s obligation to close shall have been satisfied.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Sunrise Senior Living Inc)
Conditions to Closing. (a) nStor's 6.1. The obligation of the Investor to consummate close the transactions transaction contemplated by this Agreement shall be is subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement satisfaction on or prior to the Closing DateTime of the following conditions:
(a) The Company and each Aames Transaction Party shall have executed this Agreement and delivered the same to the Investor.
(iib) Except for the Convertible Subordinated Debentures, all outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(c) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(d) The Investor shall have received copies of all documents and information which it may have reasonably requested in connection with the purchase and sale of the Shares.
(e) The Company and each Aames Transaction Party, as applicable, shall have delivered to the Investor a certificate of its Chief Executive Officer and its Chief Financial Officer, dated as of the Closing Time, to the effect that, the representations and warranties of the Company or such Aames Transaction Party, as applicable, set forth in this Agreement are true and correct in all material respects and the conditions set forth in this Section 6.1 have been satisfied, in each case as of such date.
(f) The Company shall have executed a registration rights agreement substantially in the form attached hereto as Exhibit A (the “Registration Rights Agreement”) and delivered the same to the Investor.
(g) SFP shall have delivered to the Company and the Investor a letter, in form and substance satisfactory to ▇▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by & ▇▇▇▇▇▇▇ LLP, pursuant to which SFP shall consent to the Registration Rights Agreement and necessary for shall agree not to object to the consummation Company’s full compliance with the provisions of the transactions contemplated herebyRegistration Rights Agreement.
(iiih) nStor and its accountants, attorneys and other representatives The Company shall have had full successfully completed the closing of the Public Offering of Common Stock to the satisfaction of the Investor.
(i) The Company shall have furnished to the Investor an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and complete access during normal business hours each of the Aames Transaction Parties, addressed to the Investor substantially to the effect set forth on Exhibit B hereto.
(j) The Company shall have furnished to the Investor a letter from Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the Aames Transaction Parties, permitting the Investor to rely in all officesrespects on the tax opinion delivered to the Underwriters pursuant to Section 6(b) of the Underwriting Agreement, facilities, properties, assets, books, agreements, files which letter shall be in form and records of Andataco, including financial and operating data and other information regarding substance satisfactory to ▇▇▇▇▇▇ and Andataco& ▇▇▇▇▇▇▇ LLP, counsel for the Investor.
(ivk) nStor The Company shall have received furnished to the nStor Financing Investor an opinion of ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Company, addressed to the Investor substantially to the effect set forth on Exhibit C hereto.
(l) The Company shall have furnished to the Investor a letter from ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, permitting the Investor to rely in all respects on the licensing and regulatory opinions delivered to the Underwriters pursuant to Section 6(d) of the Underwriting Agreement, which letter shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP.
(m) The Company shall furnish to the Investor a letter permitting it to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP.
(n) Between the time of execution of this Agreement and the Closing Time, no Material Adverse Change or any development involving a prospective Material Adverse Change in the business, properties, management, financial condition or results of operations of the Company and the Subsidiaries taken as a whole shall occur or become known.
6.2. The obligation of the Company to close the transaction contemplated by this Agreement is subject to the satisfaction on or prior to the Closing Date.Time of the following conditions:
(va) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ The Investor shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in executed this Agreement shall be true and correct both at delivered the date on which this Agreement is signed and at and as of same to the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing DateCompany.
(b) The obligations Investor shall have delivered to the Company a certificate of ▇▇▇▇▇ an authorized officer, dated as of the Closing Time, to consummate the transactions contemplated by effect that the representations and warranties of the Investor in this Agreement shall be subject to the fulfillmentare true and correct in all material respects, at or prior to Closing, of each as if made on and as of the following conditions precedent (any or all of which may be waived in writingClosing Time, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and the Investor has complied with all of the agreements and satisfied all the conditions on its covenants required part to be performed or to be complied with by it under this Agreement on satisfied at or prior to the Closing DateTime.
(iic) nStor The Investor shall have executed a registration rights agreement substantially in the form attached hereto as Exhibit A, and delivered the same to the Company.
(d) The Company shall have successfully completed the closing of the Public Offering of Common Stock.
(e) The Investor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated herebyPurchase Price as specified in Article 3.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Aames Investment Corp), Stock Purchase Agreement (Aames Investment Corp)
Conditions to Closing. (a) nStor's The obligation of the Holder hereunder to consummate the transactions contemplated by this Agreement shall be hereby at the Closing is subject to the fulfillmentsatisfaction, at or prior to Closingbefore the Closing Date, of each of the following conditions, provided that these conditions precedent (any or all of which are for the Holder’s sole benefit and may be waived by the Holder at any time in writing, in whole or in part, its sole discretion by nStor):providing the Company with prior written notice thereof:
(i) ▇▇▇▇▇ The Company shall have performed all caused its transfer agent to credit to Holder or its designee the Exchange Shares;
(ii) The Company shall have submitted an additional share listing application for the Exchange Shares with the NYSE MKT on or prior to the Closing Date and shall cause the Exchange Shares to be approved by the NYSE MKT for listing on the Closing Date or as soon as practicable thereafter; and
(iii) The representations and warranties of the obligations 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 the Company has complied in all material respects with all of the covenants required agreements and satisfied all the conditions on its part to be performed or to be complied with by them under this Agreement on satisfied at or prior to the Closing Date.
(iib) ▇▇▇▇▇ shall have delivered The obligation of the Company hereunder to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of consummate the transactions contemplated herebyhereby at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing the Holder with prior written notice thereof:
(i) The Holder shall have delivered, or caused to be delivered, to the Company (x) the Exchange Notes being exchanged pursuant to this Agreement in accordance with the written instructions of the Company and (y) all documentation related to the right, title and interest in and to all of the Exchange Notes, and whatever documents of conveyance or transfer may be necessary or reasonably desirable to transfer to and confirm in the Company all right, title and interest in and to (free and clear of any mortgage, lien, pledge, charge, security interest, encumbrance, title retention agreement, option, equity or other adverse claim thereto) the Exchange Notes.
(iiiii) nStor The representations and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any warranties of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained Holder in this Agreement shall be true and correct both at the date in all material respects on which this Agreement is signed and at and as of the Closing Date with the same effect as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until on the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate Date and that the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor Holder shall have performed complied in all of its obligations and complied material respects with all of the agreements and satisfied all the conditions on its covenants required part to be performed or to be complied with by it under this Agreement on satisfied at or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Exchange Agreement (Emerald Oil, Inc.), Exchange Agreement (Emerald Oil, Inc.)
Conditions to Closing. (a) nStor's obligation The obligations of Acquirer to consummate the Transaction and the other transactions contemplated by this Agreement shall be are subject to the fulfillment, at satisfaction (or waiver by Acquirer) on or prior to Closing, the Closing of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):precedent:
(i) ▇▇▇▇▇ The representations and warranties of SPAC and Sponsor set forth in Sections 9 and 10 of this Agreement, respectively, shall have performed be true and correct in all material respects (except for the representations and warranties contained in Sections 9(a), 9(b), 9(d), 9(e), 10(a), 10(c), and 10(g), which shall be true and correct in all respects) as of the obligations Closing Date with the same effect as though made at and complied with as of such date (except those representations and warranties that address matters only as of a specified date, which shall be true and correct in all respects as of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Datethat specified date).
(ii) ▇▇▇▇▇ SPAC and Sponsor shall have performed, satisfied and complied in all material respects with all covenants and agreements contained in this Agreement.
(iii) SPAC and/or Sponsor shall have delivered evidence reasonably satisfactory to Acquirer that, as of the Closing Date, all liabilities or obligations (absolute, accrued, contingent or otherwise), other than the Liabilities set forth on Schedule 10(k), have been paid or discharged.
(iv) SPAC shall have delivered evidence reasonably satisfactory to Acquirer that BofA has waived the deferred underwriting fee pursuant to the Underwriting Agreement.
(v) Sponsor shall have executed and delivered to the Acquirer stock powers and/or other instruments of transfer duly conveying the Transferred Securities to the Sponsor.
(vi) SPAC shall have delivered to nStor any Acquirer the resignation of each officer and director of SPAC on the terms as set forth in Section 6 of this Agreement.
(vii) Sponsor shall have obtained all approvals, requisite consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such timeTransaction.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date SPAC shall have delivered to Acquirer a copy of the 1998 10-K until joinder to the Insider Letter duly executed by SPAC.
(ix) Sponsor shall have delivered to Acquirer evidence of the termination of the Administrative Services Agreement, effective as of the Closing Date, executed by Sponsor and SPAC.
(x) SPAC shall have delivered to Acquirer a copy of the joinder the Registration Rights Agreement duly executed by SPAC.
(xi) The Class A Shares, warrants and units of SPAC remain listed on Nasdaq;
(xii) Acquirer shall pay to Sponsor the cash portion of the Purchase Price in cash or wire transfer of immediately available funds at the Closing and shall advance to SPAC up to $50,000 to pay for expenses related to SPAC’s current SEC quarterly filing.
(xiii) Prior to the Closing, Sponsor and the Directors shall have delivered notices to SPAC to convert the Retained Shares into an aggregate of 970,312 Class A Shares, and SPAC shall have delivered to SPAC’s transfer agent instructions and an opinion of counsel for all of such Retained Shares to be converted into Class A Shares.
(xiv) Access to SPAC’s bank account(s) shall have been transferred to Acquirer and/or its designees.
(b) The obligations of ▇▇▇▇▇ SPAC and Sponsor to consummate the Transaction and the other transactions contemplated by this Agreement shall be are subject to the fulfillment, at satisfaction (or waiver by Sponsor) on or prior to Closing, the Closing of each of the following conditions precedent precedent:
(any or i) The representations and warranties of Acquirer set forth in Section 11 of this Agreement shall be true and correct in all material respects (except for the representation and warranty contained in Section 11(a), which shall be true and correct in all respects) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, which may shall be waived true and correct in writingall respects as of that specified date).
(ii) Acquirer shall have performed, satisfied and complied in whole or all material respects with all covenants and agreements contained in partthis Agreement.
(iii) Acquirer shall have paid the Purchase Price to Sponsor and advanced to SPAC up to $50,000 to pay for expenses related to SPAC’s current SEC quarterly filing.
(iv) Acquirer shall have delivered to Sponsor and SPAC a copy of the joinder to the Insider Letter, duly executed by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date▇▇▇.
(iiv) nStor Acquirer and Sponsor shall have delivered entered into a transfer agreement acceptable to ▇▇▇▇▇ any and all approvals, consents or assignments each of them which agreement will provide for a transfer of certain securities from Acquirer to be obtained by nStor and necessary for Sponsor in the consummation of event that Sponsor introduces Acquirer to investors that invest up to $10 million in the transactions contemplated herebyBusiness Combination.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Purchase Agreement (APx Acquisition Corp. I), Purchase Agreement (APx Acquisition Corp. I)
Conditions to Closing. (a) nStor's The following conditions are precedent to B▇▇▇▇’s obligation to consummate proceed with the transactions contemplated by this Agreement shall be subject to applicable Closing (collectively, the fulfillment“Buyer’s Conditions Precedent”). If any of Buyer’s Conditions Precedent are not satisfied as and when described below then, at or prior to Closing, unless the failure of each of the following conditions precedent (any or all of which may be waived in writingsuch condition constitutes a Seller default, in whole or in partwhich case the provisions of Section 16 shall control, Buyer may elect, by nStor):
written notice to Seller, in Buyer’s sole and absolute discretion, either to (i) waive that Buyer’s Condition Precedent and proceed to the applicable Closing, (ii) extend the applicable Closing Date from time to time for items 11.1 (ii), (iv), and (ix) thru (xiv) (but for all other Buyer’s Condition’s Precedent only for a maximum of sixty (60) days or such longer period as may be approved by Seller) until Buyer’s Conditions Precedent are satisfied (provided, however, the Initial Closing Date may not be extended for any period unless otherwise agreed by Seller), or (iii) terminate this Agreement, whereupon the Title Company shall immediately return to Buyer the E▇▇▇▇▇▇ Money (or uncredited portion) previously deposited by B▇▇▇▇ and, thereafter, the Parties shall have performed all of the no further rights or obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on Agreement, except for those that expressly survive the termination of this Agreement.
i. On or prior to the Closing Date.
(ii) expiration of the Inspection Period, Buyer shall have obtained the written approval of the Buyer’s asset management committee, for B▇▇▇▇’s continued performance of this Agreement. B▇▇▇▇’s delivery of the properly executed Continuation Notice shall constitute satisfaction of this Buyer’s Condition Precedent. Any Amendments to this Agreement that occur after a properly executed Continuation Notice has been delivered as described herein must be ratified by one of the following individuals before the Amendment is effective and enforceable against Buyer: L▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) J▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇▇▇ contained or C▇▇▇ ▇▇▇▇▇▇.
ii. The Final Plat approved by Buyer for the applicable Section of Lots shall have been recorded.
iii. As of the applicable Closing Date, all of Seller’s representations and warranties set forth in this Agreement shall be true and correct both at correct.
iv. On or prior to the date on which applicable Closing Date, Seller shall not be in default of, and shall have performed and complied in all respects with all obligations and agreements required in this Agreement is signed and at and to be performed or complied with by Seller.
v. As more particularly provided in Section 14 below, as of the applicable Closing Date no moratorium prohibition restricting or precluding the issuance of building permits or certificates of occupancy shall have been enacted by the City or any other Governmental Authorities, unless the same has been waived by Buyer as if made anew at and a Buyer’s Condition Precedent as of such timeprovided therein.
(viii) There has not been any material adverse vi. As more particularly provided in Section 14 below, no casualty or other change in the businessProperty has occurred and no condemnation action have been threatened, operations and financial conditions of Andataco from and after commenced or completed, unless the date same has been waived by Buyer as a Buyer’s Condition Precedent as provided therein.
vii. Subject to the development of the 1998 10-K until Lots in accordance with this Agreement and any changes described in Section 14 below, the Property is substantially in the same condition that existed as of the expiration of the Inspection Period.
viii. On or prior to the applicable Closing Date, (i) good and indefeasible title to the Property can be conveyed by Seller, subject only to the Permitted Exceptions, as more specifically provided in Section 6 above, and (ii) the Title Company shall be irrevocably committed to issue to Buyer the Owner’s Title Policy for the Property to be conveyed at Closing as required under this Agreement.
ix. On or prior to the applicable Closing Date, Seller will have caused all tenants and occupants to vacate the Property and all leases and occupancy agreements shall be terminated.
x. The Completion Date for the applicable Lots being purchased has occurred.
xi. Seller will have developed all of the applicable Lots as “finished” Lots, as defined in Section 10.1 (bsubject only to Buyer’s obligation to provide final grading of the Lots and Seller’s Post Completion Work).
xii. Seller shall have met the Development Scope and Specifications requirements of Buyer per Exhibit B-1 except for the Post Completion Work, and delivered Seller’s Completion Documents per Exhibit C.
xiii. If not already annexed, the Lots for such Closing shall be annexed and made subject to the Declaration prior to the applicable Closing.
xiv. Approval of B▇▇▇▇’s home architectural plans for the lots has been provided by the proper architectural review body pursuant to Section 7.3, provided that Buyer submits the Plans for approval by the deadline in Section 7.3. If any of Buyer’s Conditions Precedent have not been satisfied by the Outside Completion Date, then Buyer shall have the right to (i) The obligations of terminate this Agreement by written notice to Seller, whereupon the E▇▇▇▇▇▇ to consummate the transactions contemplated by this Agreement Money (or uncredited portion) shall be subject delivered to Buyer; (ii) waive in writing the fulfillmentunsatisfied condition(s) and proceed with the applicable Closing; or (iii) extend the Outside Completion Date one or more times until all of Buyer’s Conditions Precedent are satisfied, at or prior such extension(s) not to Closing, of each exceed in the aggregate ninety (90) days after the original Outside Completion Date unless otherwise approved by Seller. If any of the following conditions precedent Buyer’s Conditions Precedent have not been satisfied by the date to which the Outside Completion Date is extended, then Buyer may exercise the rights set forth in clauses (i) or (ii) of the preceding sentence. The waiver of a Condition to Closing will not be deemed to be a waiver of any right to seek remedies as provided in this Agreement. If any of the Buyer’s Conditions Precedent have not been satisfied by the Outside Completion Date or by a scheduled Closing date or Seller is otherwise in default under this Agreement, then until all of which may be the Buyer’s Conditions Precedent have been satisfied or Seller’s default cured, as applicable, or the condition or default waived by Buyer in writing, Buyer’s obligation to purchase Lots in whole or in part, by ▇▇▇▇▇):
(i) nStor accordance with the takedown requirements of Section 4.2 shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇a▇▇▇▇ and the escalator for price per Lot provided for in Section 2 shall cease to accrue on any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
Lots that Closing is delayed. Additionally, before Buyer exercises its right to terminate under the first paragraph of Section 11.1 for failure of the Buyer’s Conditions Precedent listed in 11.1(ii), (iiix), (xi), or (xii), Buyer shall provide notice of termination to Seller and Seller shall have up to the earlier of (a) There sixty (60) days after Buyer’s delivery of the notice of termination or (b) the Outside Completion Date, to cure such failure, and if such failure is not cured within such time period, such termination shall not have been institutedtake effect upon the expiration of such time period, pending or threatened against Andataco, unless B▇▇▇▇ withdraws such termination notice in writing prior to the expiration of such cure period. Before Buyer can exercise exercises its right to terminate under the first paragraph of Section 11.1 for failure of the Buyer’s Conditions Precedent listed in 11.1(xiii) Buyer shall provide notice of termination to Seller and Seller shall have up to the earlier of (a) thirty (30) days after Buyer’s delivery of the notice of termination or (b) the Outside Completion Date, to cure such failure, and if such failure is not cured within such time period, such termination shall take effect upon the expiration of such time period, unless B▇▇, nStor or ▇▇ withdraws such termination notice in writing prior to the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any expiration of the transactions contemplated by this Agreementsuch cure period.
Appears in 2 contracts
Sources: Contract for Purchase and Sale (Alset Inc.), Contract for Purchase and Sale (LiquidValue Development Inc.)
Conditions to Closing. (a) nStor's a. Superior’s obligation to consummate close the transactions contemplated by this Agreement Redemption shall be subject to satisfaction of the fulfillment, at or following conditions prior to or concurrently with the Closing, which conditions may be waived by Levy in its sole discretion:
▇. ▇▇▇▇’▇ and Superior’s consummation of the Issuance with the New Joint Venture Partner providing for the Issuance on terms satisfactory to Levy; provided, that if this condition is not met or waived on or before the Issuance Agreement Deadline, it shall no longer be applicable unless Levy has terminated this Agreement in accordance with Section 20(f) on or before the Issuance Agreement Deadline; and
ii. USC and each Joint Venture Partner, as applicable, shall have executed and delivered to Levy counterparts to each Final Form to which it is a party.
b. The obligations of the Joint Venture Parties to close the Redemption shall be subject to satisfaction of the following conditions prior to or concurrently with the Closing, which conditions may be waived by USC in its sole discretion:
i. the approval by the U.S. Bankruptcy Court of the entry by USC into this Agreement and the other agreements, amendments and documents contemplated herein by August 20, 2010; provided, that USC may not waive this condition; and
ii. Levy, Superior and the New Joint Venture Partner, as applicable, shall have executed and delivered to USC counterparts to each Final Form to which it is a party.
c. The obligation of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior parties is subject to the Closing Date.
condition that no action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or non-U.S. jurisdiction wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iiA) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the prevent consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Agreement or (viB) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit cause any of the transactions contemplated by this AgreementAgreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect).
d. USC and each of the Joint Venture partners hereby agree to use their commercially reasonable best efforts to obtain the approval by the U.S. Bankruptcy Court of the entry by USC into this Agreement and the other agreements, amendments and documents contemplated herein by August 20, 2010.
Appears in 2 contracts
Sources: Redemption Agreement (Us Concrete Inc), Redemption Agreement (Us Concrete Inc)
Conditions to Closing. (a) nStor's obligation The obligations of Buyer and Seller to consummate the Closing are subject to the satisfaction of the following conditions:
(i) No provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the consummation of the Closing.
(ii) Each other party to this Agreement shall have executed and delivered each of the Transaction Documents to be entered into by it, in each case substantially in the form attached as an exhibit to this Agreement, and any other documents or items required to be delivered by it pursuant to Section 3.3.
(b) The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions:
(A) The representations and warranties of Seller contained in this Agreement at the time of its execution and delivery and in any certificate or other writing delivered by Seller pursuant hereto, shall be true and correct in all material respects at and as of the Closing Date, as if made at and as of such date and (B) Buyer shall have received a certificate signed by the an authorized signatory of Seller to the foregoing effect.
(ii) No Governmental Body shall have issued any order and no proceeding challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been instituted by any Person before any Governmental Body and be pending.
(iii) Seller shall have received any required consents (i) to the assignment of each of the agreements listed in Schedule 4.4(c), and (ii) from each third party having a contractual right to consent to the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writingAgreement, in whole or each case in partform and substance reasonably satisfactory to Buyer and its counsel, by nStor):and no such consent shall have been revoked.
(iiv) ▇▇▇▇▇ The existing security agreements between PRF and Seller shall have been amended to terminate PRF's security interest in the Acquired Assets, and Seller shall have obtained the Collateral Agent's signature on any documents necessary to effect such termination.
(v) Buyer shall have performed all of the obligations and or complied with in all of the material respects all agreements and covenants required by this Agreement to be performed or to be complied with by them under this Agreement it on or prior to the Closing, and Seller shall have received at the Closing Datea certificate from an appropriate officer of Buyer to that effect.
(iivi) ▇▇▇▇▇ Seller shall have delivered obtained any required approval of shareholders of Seller to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated herebyby this Agreement..
(vii) The Celltech Development Agreement and any rights or interests of Celltech pursuant thereto or granted thereunder shall have been terminated, with a letter agreement from Celltech (or its successor) indicating that there are no remaining rights or interest in favor of Celltech or remaining obligations to Celltech (other than certain payment obligations which may be owed by Seller from payments received by Buyer under Section 2 of this Agreement) thereunder. Seller shall have provided Buyer a fully executed copy of such agreement or instrument terminating the Celltech Development Agreement.
(viii) Seller shall have delivered to Buyer fully executed documents, in form and substance reasonably satisfactory to the Buyer and Buyer's lenders, providing for releases and discharges of all liens attaching to any of the Acquired Assets.
(ix) The FDA shall not have indicated in writing that it will require a Phase III clinical trial as a condition to reintroduction of the Product into the United States for use in the Included Indication; provided, however, that if the FDA indicates orally on or after November 10, 2005 that it will require a Phase III clinical trial but such indication has not been confirmed in writing by the FDA, the obligation of Buyer to consummate the Closing shall be delayed until the date that is the earlier of (a) 35 days following the date of such oral requirement from the FDA, and (b) the business day next succeeding any retraction or rescission by the FDA, either orally or in writing, of such oral requirement. If written confirmation from the FDA regarding imposition of such clinical trial requirement is received within such 35 day period then Buyer shall not be obligated under this subsection to consummate the Closing.
(c) The obligation of Seller to consummate the Closing is subject to the satisfaction of the following further conditions:
(A) The representations and warranties of Buyer contained in this Agreement at the time of its execution and delivery and in any certificate or other writing delivered by Buyer pursuant hereto, shall be true and correct in all material respects at and as of the Closing Date, as if made at and as of such date and (B) Seller shall have received a certificate signed by the an authorized signatory of Buyer to the foregoing effect.
(iii) nStor and its accountants, attorneys and other representatives No Governmental Body shall have had full issued any order and complete access during normal business hours no proceeding challenging this Agreement or the transactions contemplated hereby or seeking to all officesprohibit, facilitiesalter, properties, assets, books, agreements, files prevent or materially delay the Closing shall have been instituted by any Person before any Governmental Body and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andatacobe pending.
(iv) nStor Seller shall have received the nStor Financing on or prior any required consents to the Closing Dateassignment of each of the Acquired Contracts, in each case in form and substance reasonably satisfactory to Seller, and no such consent shall have been revoked.
(v) There shall not have been institutedoccurred or be continuing any event or circumstance which could reasonably be expected to have a material adverse effect on Buyer, pending its ability to manufacture, market or threatened against Andatacodistribute the Product, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking its ability to restrain or prohibit any of the transactions contemplated by perform its obligations under this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Valera Pharmaceuticals Inc), Asset Purchase Agreement (Valera Pharmaceuticals Inc)
Conditions to Closing. (a) nStor's obligation The obligations of Buyer and each Seller to consummate the Closing are subject to the satisfaction, or, if permitted by Applicable Law, waiver by the party for whose benefit such condition exists, of the following conditions:
(i) (A) the applicable waiting period under the HSR Act with respect to the transactions contemplated hereby shall have expired or been terminated and there shall not be in effect any voluntary agreement between Buyer, Sellers or their respective Affiliates (including any Company Entities) and the United States Federal Trade Commission, the United States Department of Justice or other applicable Governmental Authority pursuant to which Buyer, Sellers or any of their respective Affiliates, as applicable, has agreed not to consummate the transactions for any period of time, (B) the U.S. National Security Clearances shall have been obtained, (C) the applicable notice period under ITAR with respect to the transactions contemplated hereby shall have concluded or DDTC shall have consented to the transactions contemplated hereby, (D) the other Required Regulatory Approvals set forth in Section 8.01(a)(i) of the Company Disclosure Schedule shall have been obtained and shall remain in full force and effect and (E) approval shall have been obtained and shall remain in full force and effect in respect of any other submission to a Governmental Authority competent in respect of Antitrust Laws or Foreign Investment Laws that Buyer and Sellers have agreed (acting reasonably) to submit pursuant to Section 7.03(b)(i)(A);
(ii) there shall not be in force an order, decree or judgment of any Governmental Authority having competent jurisdiction, or any Applicable Law, in either case, enjoining or prohibiting the consummation of the transactions contemplated hereby (a “Legal Restraint”); and
(iii) the BBU Minority Approval shall have been obtained.
(b) The obligations of Buyer to consummate the Closing are subject to the satisfaction, or, if permitted by Applicable Law, waiver by Buyer, of the following further conditions:
(i) (A) the representations and warranties set forth in the first sentence of Section 4.01 and in Section 4.02, Section 4.04, Section 4.07, Section 5.01, Section 5.02, Section 5.06(b) and Section 5.07, shall be true and correct (without giving any effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth therein) in all material respects as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, (B) the representations and warranties set forth in Section 4.10(a)(iii) shall be true and correct in all respects at and as of such date set forth therein, (C) the representations and warranties set forth in Section 5.06(a) shall be true and correct in all respects as of the Closing Date, as if made at and as of such date, (D) the representations and warranties of Sellers set forth in Article 4 (other than in those Sections listed in the preceding clauses (A), (B) and (C)), disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except, in each case, for any inaccuracy or omission that would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and (E) the representations and warranties of Sellers set forth in Article 5 (other than in those Sections listed in the preceding clauses (A), (B) and (C)) shall be true and correct as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except, in each case, for any inaccuracy or omission that would not reasonably be expected, individually or in the aggregate, to materially impair Sellers’ ability to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):hereby;
(iii) ▇▇▇▇▇ each Seller and BBU shall have performed and complied, in all of the material respects, with their respective covenants and obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement it on or prior to the Closing Date.
(iiiii) ▇▇▇▇▇ since the date of this Agreement, no Material Adverse Effect shall have delivered occurred and be continuing;
(iv) since the date of this Agreement, no Credit Agreement Default shall have occurred and be continuing; and
(v) Buyer shall have received a certificate signed by an authorized officer of each Seller certifying the satisfaction of the foregoing clauses (i), (ii), (iii) and (iv).
(c) The obligations of each Seller to nStor consummate the Closing are subject to the satisfaction, or, if permitted by Applicable Law, waiver by such Seller, of the following further conditions:
(i) (A) the representations and warranties set forth in Section 6.01, Section 6.02, Section 6.05(b) and Section 6.14 shall be true and correct in all material respects as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, (B) the representations and warranties set forth in Section 6.05(a) shall be true and correct in all respects as of the Closing Date, as if made at and as of such date, and (C) the representations and warranties set forth in Article 6 (other than in those Sections listed in the preceding clauses (A) and (B)) shall be true and correct as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except any and all approvalsinaccuracy or omission that would not reasonably be expected, consents individually or assignments in the aggregate, to be obtained by ▇▇▇▇▇ and necessary for the consummation of materially impair Buyer’s ability to consummate the transactions contemplated hereby.;
(iiiii) nStor each of Buyer, BEP Investor and its accountants, attorneys and other representatives Cameco shall have had full performed and complete access during normal business hours complied, in all material respects, with their respective covenants and obligations required to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing be performed or complied with by it on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.; and
(iii) There such Seller shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or received a certificate signed by an authorized officer of Buyer certifying the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any satisfaction of the transactions contemplated by this Agreementforegoing clauses (i) and (ii).
Appears in 2 contracts
Sources: Equity Purchase Agreement (Cameco Corp), Equity Purchase Agreement (Brookfield Business Corp)
Conditions to Closing. (a) nStor's obligation to consummate the transactions contemplated by this Agreement 3.2.1 The Closing shall be subject to the fulfillmentsatisfaction or valid waiver by the Company, at on the one hand, or prior to ClosingSubscriber, on the other, of each of the following conditions precedent (any or all of which may be waived in writingthat, in whole or in part, by nStor):on the Closing Date:
(i) ▇▇▇▇▇ No suspension of the qualification of the Securities for offering or sale or trading of the Common Stock on the Nasdaq Capital Market (“Nasdaq”) shall have performed all of the obligations occurred and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Datecontinuing.
(ii) ▇▇▇▇▇ No Authority shall have delivered to nStor enacted, issued, promulgated, enforced or entered any law, rule, regulation, judgment, decree, executive order or award (whether temporary preliminary or permanent) which is then in effect and all approvals, consents has the effect of making the transactions contemplated hereby illegal or assignments to be obtained by ▇▇▇▇▇ and necessary for otherwise prohibiting or enjoining the consummation of the transactions contemplated hereby.
(iii) nStor and its accountantsAll conditions precedent to the consummation of the Transaction set forth in the Transaction Agreement, attorneys and other representatives as determined by the parties to the Transaction Agreement, shall have had full been satisfied or waived by the party entitled to the benefit thereof (other than those conditions that, by their nature, may only be satisfied at the consummation of the Transaction, but subject to satisfaction of such conditions as of the consummation of the Transaction), and complete access during normal business hours the Transaction Closing shall be substantially concurrent with the Closing.
3.2.2 The Closing shall also be subject to the satisfaction or valid waiver by the Subscriber of the conditions that, on the Closing Date:
(i) The Company shall have performed, satisfied and complied in all offices, facilities, properties, assets, books, material respects with all agreements, files conditions and records covenants required by this Subscription Agreement to be performed by the Company at or prior to the Closing.
(ii) The representations and warranties of Andatacothe Company contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Material Adverse Effect (as defined herein), including financial which representations and operating data warranties shall be true in all respects) at and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects (other information regarding ▇▇▇▇▇ than representations and Andatacowarranties that are qualified as to materiality or Material Adverse Effect, which representations and warranties shall be true in all respects) as of such date), and consummation of the Closing, shall constitute a reaffirmation by the Company of each of the representations, warranties and agreements of the Company contained in this Subscription Agreement as of the Closing Date.
(iii) No amendment, waiver or modification of the Transaction Agreement shall have occurred that would reasonably be expected to materially and adversely affect the economic benefits that Subscriber would reasonably expect to receive under this Subscription Agreement, unless Subscriber has previously consented in writing to such amendment, waiver or modification.
(iv) nStor Company shall have received filed with Nasdaq an application or supplemental listing application for the nStor Financing on or prior listing of the Securities and Nasdaq shall have raised no objection with respect thereto, subject to the Closing Dateofficial notice of issuance.
(v) There shall not have been institutedno amendment, pending waiver or threatened against Andataco, ▇▇▇▇▇, nStor modification to the Other Subscription Agreements that materially benefits (economically or otherwise) the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking Other Subscribers thereunder unless this Subscription Agreement shall have been amended to restrain or prohibit any of reflect the transactions contemplated by this Agreementsame terms.
(vi) ▇. ▇▇▇▇▇ From and after the date hereof, there shall have entered into Employment not occurred a Material Adverse Effect which is continuing and uncured.
3.2.3 The Closing shall also be subject to the satisfaction or valid waiver by the Company of the conditions that, on the Closing Date:
(i) Subscriber shall have performed, satisfied and complied in all material respects with all agreements, conditions and covenants required by this Subscription Agreement as provided for in Section 3(a) hereofto be performed by Subscriber at or prior to the Closing.
(viiii) Each representation All representations and warranty warranties of ▇▇▇▇▇ Subscriber contained in this Subscription Agreement shall be true and correct both at the date on in all material respects (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect, which this Agreement is signed representations and warranties shall be true in all respects) at and as of the Closing Date (except for representations and warranties made as if made anew at of a specific date, which shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect, which representations and warranties shall be true in all respects) as of such time.
(viii) There has not been any material adverse change in the businessdate), operations and financial conditions of Andataco from and after the date consummation of the 1998 10-K until Closing, shall constitute a reaffirmation by the Subscriber of each of the representations, warranties and agreements of the Subscriber contained in this Subscription Agreement as of the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Subscription Agreement (ProSomnus, Inc.), Subscription Agreement (Cleantech Acquisition Corp.)
Conditions to Closing. (a) nStor's obligation The obligations of each Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the fulfillment, at or prior to Closing, satisfaction by the Company of each of the following conditions precedent (on or before the Closing Date on which such Purchaser is to acquire Securities, any one or all more of which may be waived in writing, in whole or in part, by nStor):such Purchaser:
(i) ▇▇▇▇▇ shall have performed all The representations and warranties of the obligations and complied with all Company set forth in this Agreement delivered to the Purchasers by or on behalf of the covenants required to Company shall be performed or to be complied with by them under this Agreement true and correct as if made on or prior to the such Closing Date.
(ii) ▇▇▇▇▇ Each of the covenants, agreements and conditions to be performed and satisfied by the Company pursuant to this Agreement at or prior to such Purchaser's Closing shall have delivered to nStor any been duly performed and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated herebysatisfied.
(iii) nStor and its accountants, attorneys and other representatives The Company shall have had full and complete access during normal business hours delivered an executed counterpart of this Agreement to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andatacosuch Purchaser.
(ivb) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or The obligations of the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of consummate the transactions contemplated hereby on each Closing Date shall be subject to the satisfaction by this Agreement.each Purchaser acquiring Securities on such Closing Date of each of the following conditions on or before such Closing Date, any one or more of which may be waived by the Company:
(vii) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation The representations and warranty warranties of ▇▇▇▇▇ contained such Purchaser set forth in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of on such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor Each of the covenants, agreements and conditions to be performed and satisfied by such Purchaser pursuant to this Agreement at or prior to such Purchaser's Closing shall have delivered to ▇▇▇▇▇ any been duly performed and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated herebysatisfied.
(iii) There Such Purchaser shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or paid the Purchase Price to be paid by it in accordance with Section 3.
(iv) Such Purchaser shall have delivered a completed and executed Purchaser Signature Page to the Company.
(c) The Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking and each Purchaser shall use their best efforts to restrain or prohibit any of the transactions contemplated by cause their respective conditions to closing set forth in this AgreementSection 11 to be satisfied.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Palomar Medical Technologies Inc), Securities Purchase Agreement (Palomar Medical Technologies Inc)
Conditions to Closing. (a) nStor's obligation 1.50 Conditions to the Obligation of the Primary Purchaser and the Company. The obligations of the Primary Purchaser and the Company to consummate the Closing are subject to the satisfaction (or waiver by the Primary Purchaser and the Company) of each of the following conditions:
(1) There shall not be (i) in force any statute, rule, regulation, order or decree restraining, enjoining or prohibiting the consummation of the transactions contemplated by this Agreement shall be subject to and the fulfillment, at other Transaction Documents or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents material suit or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking a Governmental Authority to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate enjoin the transactions contemplated by this Agreement and the other Transaction Documents.
(2) All consents, approvals, exemptions, authorizations, waivers or other actions by, or notice to, or filings with, any Governmental Authorities in respect of any Requirement of Law necessary to consummate the transactions contemplated hereby, shall have been obtained, provided, however, that the provisions of this Section 7.1(b) shall not be subject available to any party whose failure to fulfill its obligations pursuant to Section 6.1 shall have been the fulfillmentcause of, at or prior shall have resulted in, the failure to Closingobtain such consents, of each of the following conditions precedent (any approvals, exemptions, authorizations, waivers or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):other actions.
(i) nStor The Company shall have performed all of its obligations received (and delivered to the Purchasers) written confirmation from Nasdaq that the transactions contemplated by this Agreement and the other Transaction Documents shall not require shareholder approval pursuant to Rule 4350(i)(2) and the Company shall have complied with all the conditions of its covenants required such rule, (ii) the Company shall have delivered to be performed the Nasdaq, in accordance with Rule 4310(c)(17), a notice of the proposed issuance of the Preferred Stock pursuant to this Agreement, at least fifteen calendar days prior to the Closing Date or to be complied with by it under this Agreement on or received from Nasdaq, prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation a waiver of the transactions contemplated hereby.
requirement to give such notice, and (iii) There the shares of Common Stock reserved for issuance upon conversion of the Series A Preferred Stock shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or authorized for listing on the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this AgreementNasdaq Stock Market.
Appears in 2 contracts
Sources: Assignment (Touch America Holdings Inc), Stock Purchase Agreement (Allen & Co Inc/Allen Holding Inc)
Conditions to Closing. (a) nStor's The obligation of the Holder hereunder to consummate the transactions contemplated hereby at the Closing is subject to the satisfaction, at or before the Closing Date, of the following condition, provided that the condition is for the Holder’s sole benefit and may be waived by the Holder at any time in its sole discretion by providing the Company with prior written notice thereof: The representations and warranties of the Company in this Agreement shall be subject to the fulfillment, at or prior to Closing, of each true and correct in all material respects on and as of the following conditions precedent (any or Closing Date with the same effect as if made on the Closing Date and the Company has complied in all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied material respects with all of the covenants required agreements and satisfied all the conditions on its part to be performed or to be complied with by them under this Agreement on satisfied at or prior to the Closing Date.
(iib) ▇▇▇▇▇ shall have delivered The obligation of the Company hereunder to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of consummate the transactions contemplated hereby.
(iii) nStor and its accountantshereby at the Closing is subject to the satisfaction, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on at or prior to before the Closing Date., of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing the Holder with prior written notice thereof:
(vi) There The Holder shall not have been instituteddelivered, pending or threatened against Andatacocaused to be delivered, ▇▇▇▇▇, nStor or to the Company (i) the Notes being sold pursuant to this Agreement in accordance with a properly completed and executed Letter of Transmittal in the form provided to the Holder (the “Letter of Transmittal”) and (ii) all other documentation reasonably requested by the Company relating to the right, title and interest in and to all of the Notes, and whatever documents of conveyance or transfer that may reasonably be necessary or desirable to transfer to and confirm in the Company all right, title and interest in and to (free and clear of any suitmortgage, action lien, pledge, charge, security interest, encumbrance, title retention agreement, option, equity or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any adverse claim thereto) the Notes; and
(ii) The representations and warranties of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained Holder in this Agreement shall be true and correct both at the date in all material respects on which this Agreement is signed and at and as of the Closing Date with the same effect as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until on the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate Date and that the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor Holder shall have performed complied in all of its obligations and complied material respects with all of the agreements and satisfied all the conditions on its covenants required part to be performed or to be complied with by it under this Agreement on satisfied at or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Note Purchase Agreement (Headwaters Inc), Note Purchase Agreement (Headwaters Inc)
Conditions to Closing. (a) nStor8.1 Conditions Precedent to GRLC's obligation and Subsidiary's Obligations. GRLC's and Subsidiary's obligations to consummate the transactions contemplated by this Agreement shall be is subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to before the Closing Date.:
(iia) ▇▇▇▇▇ shall have delivered to nStor any the representations and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ warranties of Company and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for Shareholders set forth in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement Article 4 hereof shall be true and correct both at the date on which this Agreement is signed and in all material respects at and as of the Closing Date as if made anew at on such date and as of such timethe Audit shall be completed not later than May 15, 2003.;
(viiib) There has not Company and the Shareholders shall have performed in all material respects all of the covenants and agreements required to be performed by them under this Agreement prior to the Closing;
(c) there shall have been any no material adverse change in the Company's business, operations ;
(d) all material consents by third parties and financial conditions all consents of Andataco from and after Governmental Authorities that are required for the date consummation of the 1998 10-K until transactions contemplated hereby, or in order to prevent a breach of, default under, or a termination of any Contract shall have been obtained by Company and the Shareholders;
(e) all registrations, filings, applications, notices, consents, approvals, waivers, authorizations, qualifications and orders required to be filed, made or obtained by the Shareholders or Company, including full and complete cooperation in connection with preparation of audited financial statements of Company, in order to consummate the transactions contemplated by this Agreement.
(f) the Shareholders shall have delivered any and all certificates representing the Shares, duly endorsed for transfer, with an irrevocable stock power endorsed in blank, and such other documents, instruments and agreements related thereto, as GRLC may reasonably request to deliver the Purchase Consideration;
(g) (i) no Law shall be in effect, pending, or proposed, and no injunction or restraining order shall be in effect, and (ii) no Litigation shall be pending or threatened, in each case that prohibits, prevents, or enjoins (or materially interferes with) the carrying out of this Agreement or any of the transactions contemplated hereby, or that declares unlawful the transactions contemplated by this Agreement, or that would have a material adverse effect on the right of GRLC to own, operate, use, or control the Company's business after the Closing Date;
(h) on the Closing Date, Company and the Shareholders shall have delivered to GRLC:
(i) certified copies of the resolutions duly adopted by Company's boards of directors authorizing the execution, delivery, and performance of this Agreement and any other agreements or instruments contemplated by this Agreement;
(ii) certificates executed by the Shareholders and the President and the Chief Operating Officer of Company, dated the Closing Date, and certifying in such detail as GRLC may reasonably request to the fulfillment of the conditions specified in Section 8.1 hereof;
(iii) Certificate of the Secretary of State of Oklahoma , dated a Current Date, as to the legal existence and good standing of Company under applicable Law;
(iv) certificates from the Secretary of State of each jurisdiction in which Company is required to be qualified as a foreign corporation for the transaction of business, dated a Current Date, as to the due qualification and good standing of Company under the Laws of such jurisdiction;
(v) such other documents or instruments as GRLC may reasonably request to effect the transactions contemplated hereby; and Any condition specified in this Section 8.1 may be waived by GRLC, provided that no such waiver shall be effective unless it is set forth in a writing executed by GRLC.
(b) The obligations of ▇▇▇▇▇ 8.2 Conditions to Company's and the Shareholders' Obligations. Company's and the Shareholders' obligation to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any on or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):before the Closing Date:
(ia) nStor the representations and warranties of GRLC set forth in Article 5 hereof shall be true and correct in all material respects at and as of the Closing Date as if made on such date;
(b) GRLC shall have performed in all material respects all of its obligations the covenants and complied with all of its covenants agreements required to be performed or to be complied with by it them under this Agreement on or prior to the Closing Date.Closing;
(iic) nStor shall have delivered to ▇▇▇▇▇ any and all registrations, filings, applications, notices, consents, approvals, consents or assignments waivers, authorizations, qualifications and orders required to be filed, made or obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking GRLC in order to restrain or prohibit any of consummate the transactions contemplated by this Agreement.;
Appears in 2 contracts
Sources: Stock Purchase Agreement (Imaging Technologies Corp/Ca), Stock Purchase Agreement (Greenland Corp)
Conditions to Closing. (a) nStor's obligation to consummate the transactions contemplated by this Agreement 3.2.1 The Closing shall be subject to the fulfillmentsatisfaction or valid waiver by the Company, at on the one hand, or prior to Closingthe Subscriber, on the other, of each of the following conditions precedent (any or all of which may be waived in writingthat, in whole or in part, by nStor):on the Closing Date:
(i) ▇▇▇▇▇ No suspension of the qualification of the Securities for offering or sale or trading in any jurisdiction, or initiation or threatening of any proceedings for any of such purposes, shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Dateoccurred.
(ii) ▇▇▇▇▇ No governmental authority shall have delivered to nStor enacted, issued, promulgated, enforced or entered any judgment, order, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and all approvals, consents has the effect of making consummation of the transactions contemplated hereby illegal or assignments to be obtained by ▇▇▇▇▇ and necessary for the otherwise preventing or prohibiting consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives All conditions precedent to the consummation of the Transaction set forth in the Transaction Agreement shall have had full and complete access during normal business hours been satisfied or waived by the parties thereto (other than those conditions that, by their nature, may only be satisfied at the consummation of the Transaction, but subject to all offices, facilities, properties, assets, books, agreements, files and records satisfaction of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andatacosuch conditions as of the consummation of the Transaction).
(iv) nStor No Material Adverse Effect (as defined in the Transaction Agreement) shall have received occurred between the nStor Financing date of the Transaction Agreement and the Closing Date that is continuing.
3.2.2 The obligation of the Company to consummate the Closing shall be subject to the satisfaction or valid waiver by the Company of the additional conditions that, on or prior to the Closing Date.:
(vi) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any All representations and warranties of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ Subscriber contained in this Subscription Agreement shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date (other than those representations and warranties expressly made as if made anew at of an earlier date, which shall be true and correct in all material respects as of such timedate), and consummation of the Closing shall constitute a reaffirmation by Subscriber of each of the representations, warranties and agreements contained in this Subscription Agreement as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all material respects as of such date).
(viiiii) There has not been any The Subscriber shall have performed or complied in all material adverse change in the business, operations respects with all agreements and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Datecovenants required by this Subscription Agreement.
(biii) The obligations Subscriber shall have delivered a duly executed Registration Rights Agreement in the form of ▇▇▇▇▇ Exhibit A attached hereto (“Registration Rights Agreement”).
3.2.3 The obligation of the Subscriber to consummate the transactions contemplated by this Agreement Closing shall be subject to the fulfillmentsatisfaction or valid waiver by the Subscriber of the additional conditions that, at or prior to Closingon the Closing Date:
(i) All representations and warranties of the Company contained in this Subscription Agreement shall be true and correct in all material respects as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all material respects as of such date), and consummation of the Closing shall constitute a reaffirmation by the Company of each of the following conditions precedent (any or all representations, warranties and agreements contained in this Subscription Agreement as of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing DateDate (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all material respects as of such date).
(ii) nStor The Company shall have delivered to ▇▇▇▇▇ any performed or complied in all material respects with all agreements and all approvals, consents or assignments to be obtained covenants required by nStor and necessary for the consummation of the transactions contemplated herebythis Subscription Agreement.
(iii) There The Company shall have delivered a duly executed Registration Rights Agreement.
(iv) The Company shall have filed with the Nasdaq Capital Market (“Nasdaq”) a notice of the listing of the Ordinary Shares purchased hereunder (including the Warrant and the Warrant Shares) and Nasdaq shall have raised no objection with respect thereto.
(v) The Transaction Agreement (as the same exists on the date of this Subscription Agreement) shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or amended to materially adversely affect the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking economic benefits that the Subscriber would reasonably expect to restrain or prohibit any receive under this Subscription Agreement without having received prior written consent as described in Section 6.5.
(vi) All conditions precedent to the closing of the transactions contemplated Transaction set forth in the Transaction Agreement shall have been satisfied or waived by this Agreementthe parties thereto (other than those conditions that may only be satisfied at the closing of the Transaction, but subject to the satisfaction or waiver of such conditions as of the closing of the Transaction).
Appears in 2 contracts
Sources: Subscription Agreement (Nuvve Holding Corp.), Subscription Agreement (Newborn Acquisition Corp)
Conditions to Closing. (a) nStor's obligation The obligations of the Purchasers and the Company to consummate the transactions contemplated by this Agreement shall be hereby are subject to the fulfillment, at to
(i) The satisfaction (or prior to Closing, waiver) of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Merger Agreement on or prior to the Closing Date.Company and MergerSub’s obligations to effect the Merger;
(ii) ▇▇▇▇▇ shall have delivered The concurrent issuance and sale by the Company of shares of Series A Common Stock of the Company and Series D Common Stock of the Company for aggregate cash proceeds of at least $120 million to nStor any one or more affiliates of Investcorp S.A. (“Investcorp”) and all approvalsother international investors with whom Investcorp has an administrative relationship (collectively, consents or assignments to be obtained the “Investcorp Investors”) for cash at the same price per share as paid by ▇▇▇▇▇ and necessary the Purchasers for the consummation of the transactions contemplated hereby.Shares hereunder;
(iii) nStor The concurrent execution and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records delivery of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.a Stockholders Agreement substantially in the form attached hereto as Exhibit A; and
(iv) nStor shall have received The concurrent execution and delivery of a Registration Rights Agreement substantially in the nStor Financing on or prior to the Closing Date.form attached hereto as Exhibit B.
(vb) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or The obligations of the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking Purchasers to restrain or prohibit any of consummate the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation hereby are also subject to all representations and warranty warranties of ▇▇▇▇▇ the Company contained in this Agreement shall be herein being true and correct both at in all material respects as of the date on which this Agreement is signed hereof and at and as of the Closing Date with the same force and effect as if though made anew at on and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(bc) The obligations of ▇▇▇▇▇ the Company to consummate the transactions contemplated by this Agreement shall be hereby are also subject to the fulfillment, at or prior to Closing, of each all representations and warranties of the following conditions precedent (any or Purchasers contained herein being true and correct in all material respects as of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all the date hereof and at and as of its obligations the Closing Date with the same force and complied with all effect as though made on and as of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Texas Market Tire, Inc.), Stock Purchase Agreement (Texas Market Tire, Inc.)
Conditions to Closing. (a) nStor's obligation 6.1 The obligations of the Standby Purchaser to consummate the transactions contemplated by this Agreement shall be hereunder are subject to the fulfillment, at or prior to Closingor on the Closing Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions:
(i) ▇▇▇▇▇ shall have performed all 6.1.1 The representations and warranties of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement 3 shall be true and correct both at in all material respects as of the date on which this Agreement is signed hereof and at and as of the Closing Date as if made anew at on such date (except for representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such time.specified date);
(viii) There has not been any material adverse change in 6.1.2 Subsequent to the business, operations execution and financial conditions delivery of Andataco from this Agreement and after the date of the 1998 10-K until prior to the Closing Date, there shall not have been any Material Adverse Effect that is continuing; and
6.1.3 As of the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or NASDAQ or trading in securities generally on The NASDAQ Capital Market shall not have been suspended or limited or minimum prices shall not have been established on either exchange (a “Market Adverse Effect”).
(b) 6.2 The obligations of ▇▇▇▇▇ the Company to consummate the transactions contemplated by this Agreement shall be hereunder are subject to the fulfillment, at or prior to Closingor on the Closing Date, of each the condition that the representations and warranties of the Standby Purchaser in Section 4 shall be true and correct in all material respects as of the date hereof and at and as of the Closing Date as if made as of such date (except for representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such specified date).
6.3 The obligations of the Company and the Standby Purchaser to consummate the transactions contemplated hereunder in connection with the Rights Offering are subject to the fulfillment, prior to or on the Closing Date, of the following conditions precedent (any conditions:
6.3.1 No judgment, injunction, decree or all other legal restraint shall prohibit, or have the effect of which may be waived in writingrendering unachievable, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor Rights Offering or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the material transactions contemplated by this Agreement;
6.3.2 No stop order suspending the effectiveness of the Rights Offering Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or otherwise shall have been complied with; and
6.3.3 The New Shares and the Securities shall have been authorized for listing on The NASDAQ Capital Market.
Appears in 2 contracts
Sources: Standby Purchase Agreement, Standby Purchase Agreement (Ediets Com Inc)
Conditions to Closing. (a) nStor's obligation to consummate a. Consummation by Buyer of the transactions contemplated by this Agreement shall be hereby is subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement fulfillment on or prior to the Closing Date., of each of the following conditions, unless waived by Buyer:
(iii) ▇▇▇▇▇ shall have delivered to nStor any the representations and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation warranties of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ Seller contained in this Agreement shall be true and correct both at in all respects (in the case of any representation or warranty containing any materiality qualification) or true and correct in all material respects (in the case of any representation or warranty without any materiality qualification), in either case, as of the date on which this Agreement is signed hereof and at and as of the Closing Date Date, with the same force and effect as if made anew at and as of the Closing Date, and Buyer shall have received a certificate, dated as of the Closing Date, duly executed by Seller to such time.effect;
(viiiii) There has Seller and the Members shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date, and Buyer shall have received a certificate, dated as of the Closing Date, duly executed by Seller and the Members to such effect;
(iii) all consents, authorizations, orders and approvals of, and filings and registrations with any governmental entity or any other Person or entity which are required for or in connection with the execution and delivery of this Agreement and the consummation by each party hereto of the transactions contemplated hereby, shall have been obtained or made, including but not limited to (A) the expiration or early termination of the HSR Act waiting period, and (B) obtainment of the consents to the assignment of the Sales Tax Incentive Agreement, the 2008 Sanction Agreements, the Assumed Indebtedness, the Lease Assignments and the other Contracts to be assigned to Buyer;
(iv) no law shall have been enacted, entered, issued, promulgated or enforced by any governmental entity, nor shall any legal action, proceeding or arbitration be pending or threatened at what would otherwise be the Closing Date, which prohibits or restricts or, (if successful) would prohibit or restrict, the transactions contemplated by this Agreement or would not permit the Business of Seller as presently conducted to continue unimpaired following the Closing Date;
(v) there shall not have been: (A) any material adverse change in the properties or assets of Seller; (B) any change in applicable laws which would reasonably be expected to have a material adverse change in the business, operations and operations, properties, prospects, assets or condition (financial conditions of Andataco from and after the date or otherwise) of the 1998 10-K until business of Seller; and (C) any material damage to the Closing Date.assets or properties of Seller by fire, flood, casualty, act of God or the public enemy or other cause, regardless of insurance coverage for such damage;
(bvii) The obligations of ▇▇▇▇▇ the deliveries referred to consummate in paragraph 3(b) shall have been made; and
(viii) this Agreement and the transactions contemplated herein having been approved by this Agreement shall the Board of Directors of Buyer (evidence of which must be provided to Seller within ten (10) days following the expiration of the Due Diligence Period).
b. Consummation by Seller of the transactions contemplated hereby is subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement fulfillment on or prior to the Closing Date., of each of the following conditions, unless waived by Seller:
(i) the representations and warranties of Buyer contained in this Agreement shall be true and correct in all respects (in the case of any representation or warranty containing any materiality qualification) or true and correct in all material respects (in the case of any representation or warranty without any materiality qualification), in either case, as of the date hereof and at and as of the Closing Date, with the same force and effect as if made at and as of the Closing Date, and Seller and the Members shall have received a certificate, dated as of the Closing Date, duly executed by Buyer to such effect;
(ii) nStor Buyer shall have delivered to ▇▇▇▇▇ any performed or complied in all material respects with all agreements and all approvals, consents or assignments covenants required by this Agreement to be obtained performed or complied with by nStor it at or prior to the Closing Date, and necessary for Seller and the consummation Members shall have received a certificate, dated as of the transactions contemplated hereby.Closing Date, duly executed by Buyer to such effect;
(iii) There the HSR Act waiting period shall not have expired or been earlier terminated; and
(iv) the deliveries referred to in paragraph 3c. and d. shall have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreementmade.
Appears in 1 contract
Sources: Asset Purchase Agreement (Speedway Motorsports Inc)
Conditions to Closing. (a) nStorThe Company's obligation to consummate complete the transactions contemplated by this Agreement shall be purchase and sale of the Shares and deliver stock certificate(s) for the Shares to the Purchaser is subject to the fulfillment, at or prior fulfillment to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement Company's satisfaction on or prior to the Closing Date.of the following conditions, any of which may be waived by the Company:
(i) The receipt by the Company of an executed copy of this Agreement by the Purchaser;
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained The receipt by ▇▇▇▇▇ and necessary the Company of immediately available funds in the full amount of the purchase price for the consummation of Shares being purchased by the transactions contemplated hereby.Purchaser as set forth in the Agreement (the "Purchase Price"), in accordance with the wire transfer instructions delivered by the Company pursuant to Section 2.1(b);
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to The receipt by the Company of at least $25,000,000 for the Shares being purchased by all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.investors in the Offering (the "Investors");
(iv) nStor shall have received the nStor Financing on The Purchaser's performance, satisfaction, and compliance, in all material respects, with all covenants, agreements and conditions required by Section 4 of this Agreement at or prior to the Closing Date.;
(v) There The representations and warranties of the Purchaser made pursuant to Section 4 shall not be true and correct in all material respects as of the Closing Date, except for representations and warranties that are expressly made as of a particular date, which shall be true and correct in all material respects as of such date; and
(vi) No statute, regulation, executive order, decree, ruling or injunction shall have been institutedenacted, pending entered, promulgated or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding endorsed by any private party court or governmental agency, commission, bureau authority or body seeking to restrain or prohibit any competent jurisdiction and shall be in effect which prohibits the consummation of the transactions contemplated by this Agreement.
(vib) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.The Purchaser's obligation to complete the purchase and sale of the Shares is subject to the fulfillment of the Purchaser's satisfaction, on or prior to the Closing, of all the following conditions, any of which may be waived by the Purchaser:
(viii) Each representation and warranty The receipt by the Purchaser of ▇▇▇▇▇ contained in an executed copy of this Agreement by the Company;
(ii) The Company's performance, satisfaction, and compliance, in all material respects, with all covenants, agreements and conditions required by Section 3 of this Agreement to be performed, at or prior to the Closing Date;
(iii) The representations and warranties of the Company hereunder shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date as if though made anew at that time, except for representations and warranties that speak as of a particular date, which shall be true and correct in all material respects as of such time.date;
(viiiiv) There has not been any material adverse change in The delivery by the businessCompany to the Purchaser of an opinion, operations and financial conditions dated as of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject , from Cooley Godward LLP, counsel to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writingCompany, in whole or in part, by the form attached as A▇▇▇▇▇):▇x A hereto;
(iv) nStor The receipt by the Company of at least $25,000,000 for the Shares being purchased by all the Investors;
(vi) The Company's delivery to its transfer agent of irrevocable instructions to issue to the Purchaser or in such nominee name(s) as designated by the Purchaser in writing such number of Shares set forth in the Agreement or, if requested by the Purchaser, one or more certificates representing such Shares; and
(vii) No statute, regulation, executive order, decree, ruling or injunction shall have performed all been enacted, entered, promulgated or endorsed by any court or governmental authority of its obligations competent jurisdiction and complied with all of its covenants required to shall be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for in effect which prohibits the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions to Closing. (a) nStor's obligation This agreement comes into effect when it is filed and approved by relative Chinese authorities. In the event that it is not approved, this agreement will become null and void.
(b) The respective obligations of each party to consummate effect the transactions contemplated by this Agreement herein shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent conditions, any or all of which be waived, in whole or in part, to the extent permitted by applicable law:
(i) No governmental entity or federal or state court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, judgment, injunction or other order (whether temporary, preliminary or permanent), in any case which is in effect and which prevents or prohibits consummation of the transactions contemplated in this which is in effect and which prevents or prohibits consummation of the transactions contemplated in this Agreement; provided, however, that the parties shall use their best efforts to cause any such decree, judgment, injunction or other order to be vacated or lifted.
(ii) In the manner contemplated by Section 14(c)of the Exchange Act and the rules and regulations promulgated thereunder, the Information Statement shall have been distributed to Supcor's stockholders and the time period contemplated by Rule 14c-2(b) promulgated under the Exchange Act shall have elapsed.
(c) The obligations of Supcor to effect the transactions contemplated herein shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived in writingwaived, in whole or in part, to the extent permitted by nStor):applicable law:
(i) ▇▇▇▇▇ shall have performed all Each of the obligations representations and complied with all warranties of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any Sellers and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇-▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date Closing, except that those representations and warranties which address matters only as if made anew at of a particular date shall remain true and correct in all material respects as of such timedate. Supcor shall have received a certificate of the principal executive officer of ▇▇▇▇▇ ▇▇▇▇ to such effect.
(viiiii) There has not been any ▇▇▇▇▇-▇▇▇▇ and the Sellers shall have performed or complied in all material adverse change in respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the business, operations and financial conditions of Andataco from and after the date Closing. Supcor shall have received a certificate of the 1998 10-K until the Closing Dateprincipal executive officer of ▇▇▇▇▇ ▇▇▇▇ to such effect.
(bd) The obligations of ▇▇▇▇▇-▇▇▇▇ and the Sellers to consummate effect the transactions contemplated by this Agreement herein shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent (conditions, any or all of which may be waived in writingwaived, in whole or in part, to the extent permitted by applicable law:
(i) Each of the representations and warranties of Supcor contained in this Agreement shall be true and correct in all material respects as of the Closing, except, that those representations and warranties which address matters only as of a particular date shall remain true and correct in all material respects as of such date. ▇▇▇▇▇ ▇):▇▇▇ shall each have received a certificate of the principal executive officer of Supcor to such effect.
(iii) nStor Supcor shall have performed or complied in all of its obligations and complied material respects with all of its agreements and covenants required by this Agreement to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to Closing. ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any ▇ shall have received a certificate of the transactions contemplated by this Agreementprincipal executive officer of Supcor to such effect.
Appears in 1 contract
Conditions to Closing. (a) nStor's obligation to consummate the transactions contemplated by this Agreement 3.2.1 The Closing shall be subject to the fulfillmentsatisfaction or valid waiver by the Company, at on the one hand, or prior to ClosingSubscriber, on the other, of each of the following conditions precedent (any or all of which may be waived in writingthat, in whole or in part, by nStor):on the Closing Date:
(i) ▇▇▇▇▇ No suspension of the qualification of the Securities for offering or sale or trading of the Common Stock on the Nasdaq Capital Market (“Nasdaq”) shall have performed all of the obligations occurred and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Datecontinuing.
(ii) ▇▇▇▇▇ No Authority shall have delivered to nStor enacted, issued, promulgated, enforced or entered any law, rule, regulation, judgment, decree, executive order or award (whether temporary preliminary or permanent) which is then in effect and all approvals, consents has the effect of making the transactions contemplated hereby illegal or assignments to be obtained by ▇▇▇▇▇ and necessary for otherwise prohibiting or enjoining the consummation of the transactions contemplated hereby.
(iii) nStor and its accountantsAll conditions precedent to the consummation of the Transaction set forth in the Transaction Agreement, attorneys and other representatives as determined by the parties to the Transaction Agreement, shall have had full been satisfied or waived by the party entitled to the benefit thereof (other than those conditions that, by their nature, may only be satisfied at the consummation of the Transaction, but subject to satisfaction of such conditions as of the consummation of the Transaction), and complete access during normal business hours the Transaction Closing shall be substantially concurrent with the Closing.
3.2.2 The Closing shall also be subject to the satisfaction or valid waiver by the Subscriber of the conditions that, on the Closing Date:
(i) The Company and AERKOMM shall have performed, satisfied and complied in all offices, facilities, properties, assets, books, material respects with all agreements, files conditions and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received covenants required by this Subscription Agreement to be performed by the nStor Financing on Company or AERKOMM at or prior to the Closing DateClosing.
(vii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or The representations and warranties of each of the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ AERKOMM contained in this Subscription Agreement shall be true and correct both at the date on in all material respects (other than representations and warranties that are qualified as to materiality or a Company Material Adverse Effect or AERKOMM Material Adverse Effect, which this Agreement is signed representations and warranties shall be true in all respects) at and as of the Closing Date (except for representations and warranties made as if made anew at of a specific date, which shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or a Company Material Adverse Effect or AERKOMM Material Adverse Effect, which representations and warranties shall be true in all respects) as of such time.
(viii) There has not been any material adverse change in the businessdate), operations and financial conditions of Andataco from and after the date consummation of the 1998 10-K until Closing, shall constitute a reaffirmation by each of the Company and AERKOMM of each of the respective representations, warranties and agreements of the Company and AERKOMM contained in this Subscription Agreement as of the Closing Date.
(biii) The obligations Company shall have filed with Nasdaq an application or supplemental listing application for the listing of ▇▇▇▇▇ the Securities and Nasdaq shall have raised no objection with respect thereto, subject to consummate official notice of issuance.
(iv) There shall have been no amendment, waiver or modification to the transactions contemplated by Other Subscription Agreements that materially benefits (economically or otherwise) the Other Subscribers thereunder unless this Subscription Agreement shall have been amended to reflect the same terms.
(vi) From and after the date hereof, there shall have not occurred a Company Material Adverse Effect or AERKOMM Material Adverse Effect which is continuing and uncured.
3.2.3 The Closing shall also be subject to the fulfillmentsatisfaction or valid waiver by each of the Company and AERKOMM of the conditions that, on the Closing Date:
(i) Subscriber shall have performed, satisfied and complied in all material respects with all agreements, conditions and covenants required by this Subscription Agreement to be performed by Subscriber at or prior to the Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor All representations and warranties of Subscriber contained in this Subscription Agreement shall have delivered be true and correct in all material respects (other than representations and warranties that are qualified as to ▇▇▇▇▇ any materiality or Subscriber Material Adverse Effect, which representations and warranties shall be true in all approvalsrespects) at and as of the Closing Date (except for representations and warranties made as of a specific date, consents which shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or assignments to Subscriber Material Adverse Effect, which representations and warranties shall be obtained by nStor true in all respects) as of such date), and necessary for the consummation of the transactions contemplated hereby.
(iii) There Closing, shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or constitute a reaffirmation by the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any Subscriber of each of the transactions contemplated by representations, warranties and agreements of the Subscriber contained in this AgreementSubscription Agreement as of the Closing Date.
Appears in 1 contract
Conditions to Closing. (a) nStorPurchaser's obligation to consummate the transactions contemplated by this Agreement close shall be subject to the fulfillmentsatisfaction, at or prior to in advance of Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):following:
(i) ▇▇▇▇▇ shall have performed all All of the obligations representations and complied with all warranties of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained Seller set forth in this Agreement shall be true and correct both at the date in all respects on which this Agreement is signed and at and as of the date of Closing Date as if though made anew at and as of such that time.
(viiiii) There has not been any material adverse change in Seller shall have performed, satisfied and complied with all of the businesscovenants, operations agreements, and financial conditions of Andataco from and after required by this Agreement to be performed or complied with by it on or before the date of Closing, including, without limitation, the 1998 10-K until completion of the Closing Dateconstruction of the Improvements in accordance with the Plans and the obtaining of a Certificate of Occupancy for the Improvements.
(iii) Seller shall not be in receivership or dissolution or have made any assignment for the benefit of creditors or admitted in writing its inability to pay its debts as they mature or have been adjudicated as bankrupt or have filed a petition in voluntary bankruptcy or a petition or answer seeking reorganization under the Bankruptcy Act or any other similar law or statute of the United States or any state, and no such petition shall have been filed against it.
(b) The obligations of ▇▇▇▇▇ Seller's obligation to consummate the transactions contemplated by this Agreement close shall be subject to the fulfillmentsatisfaction, at or prior to in advance of Closing, of each the following:
(i) All of the following conditions precedent representations and warranties of Purchaser set forth in this Agreement shall be true and correct in all respects on and as of the date of Closing as though made at that time.
(any or ii) Purchaser shall have performed, satisfied and complied with all of which may the covenants, agreements, and conditions required by this Agreement to be waived performed or complied with by it on or before the date of Closing.
(iii) Purchaser shall not be in writingreceivership or dissolution or have made any assignment for the benefit of creditors or admitted in writing its inability to pay its debts as they mature or have been adjudicated as bankrupt or have filed a petition in voluntary bankruptcy or a petition or answer seeking reorganization under the Bankruptcy Act or any other similar law or statute of the United States or any state, in whole or in part, and no such petition shall have been filed against it.
(iv) Purchase by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to -▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor Inc., of all the partnership interests of Scottsdale Links Apartments, L.P. not owned or controlled by ▇▇▇▇▇-▇▇▇▇▇▇▇, Inc., or its affiliates.
(v) Appropriate certificates or resolutions of authority confirming that Purchaser is duly formed, validly existing and authorized to enter into and perform under the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Resort Investment LLC)
Conditions to Closing. (a) nStor's obligation to consummate the transactions contemplated by this Agreement It shall be subject a condition to the fulfillment, at or prior to Closing, of obligations set forth in Article II that each of the following conditions precedent shall have been satisfied or waived as of the Expiration Date:
(a) this Agreement shall have been duly executed and delivered by the parties hereto;
(b) receipt by the Shareholder of a written certificate executed by a responsible officer of the Fund, dated as of the Expiration Date, to the effect that (A) the representations and warranties of the Fund set forth in Article IV were true and correct in all material respects (except to the extent that any such representation or all of which may be waived in writingwarranty is qualified as to materiality, in whole which case it shall be true and correct in all respects) as of the date of this Agreement and are true and correct in all material respects (except to the extent that any such representation or warranty is qualified as to materiality, in partwhich case it shall be true and correct in all respects) as of the Expiration Date with the same force and effect, by nStor):as though expressly made on and as of the Expiration Date, and (B) the conditions set forth in clauses (b) and (c) of this Article III have been satisfied as of the Expiration Date;
(ic) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There there shall not have been instituted, be any pending or threatened against Andatacomaterial litigation in respect of the Fund (unless such pending or threatened litigation has been determined by the Shareholder to be acceptable, ▇▇▇▇▇and the Shareholder has communicated the same to the Fund in writing);
(d) the Shareholder, nStor in its reasonable good faith judgment, shall be satisfied that no change in law, rule or regulation (or their interpretation or administration), in each case, shall have occurred which will adversely affect the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any consummation of the transactions contemplated by this Agreement.;
(vie) ▇. ▇▇▇▇▇ there shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at been delivered to the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been Shareholder any material adverse change in the business, operations additional documentation and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ information, including satisfactory responses to consummate the transactions contemplated by this Agreement shall be subject its due diligence inquiries, as it reasonably deems relevant to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement; and
(f) no Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any law or order (whether temporary, preliminary or permanent) which is in effect and prohibits consummation of the Offer or the transactions provided for herein. No law or order shall have been enacted, entered, promulgated or enforced by any Governmental Authority which prohibits or makes illegal the consummation of the Offer or the transactions provided for herein.
Appears in 1 contract
Conditions to Closing. (a) nStor's The obligation of the Company to consummate the transactions contemplated by this Agreement hereby (including, without limitation, the Redemption and payment of the Redemption Amount) shall be subject to the fulfillment, at satisfaction or prior to Closing, waiver by the Company of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):following:
(i) ▇▇▇▇▇ shall have performed all The delivery by the Investor to the Company of the obligations 2008 Note and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.2008 Warrants for cancellation; and
(ii) ▇▇▇▇▇ shall have delivered to nStor any The representations and all approvals, consents or assignments to be obtained warranties made by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for Investor in Section 3(a) hereof.
(vii) Each representation and warranty 5 of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at as of the date on which this Agreement is signed hereof and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing DateDate and the Investor shall have complied with all agreements and satisfied all conditions to be performed or satisfied at or prior to the Closing.
(b) The obligations obligation of ▇the Investor to consummate the transactions contemplated hereby (including, without limitation, the obligation of the Investor to transfer and convey the 2008 Note and the 2008 Warrants) shall be subject to the satisfaction or waiver by the Investor of each of the following:
(i) The Company shall have delivered to the Investor the Extension Amount by bank wire transfer in accordance with Section 2(a) and the Redemption Amount by bank wire transfer in accordance with Section 2(d);
(ii) Since January 5, 2010, the Company shall have duly delivered to the Investor an aggregate of 1,100,000 shares of Common Stock pursuant to the Conversion Notice attached hereto as Exhibit B (the “Conversion Notice”) and in accordance with the terms of the 2008 Note, and each such share shall be freely transferable pursuant to Rule 144 of the Securities Act;
(iii) The applicable transfer agent shall have removed any transfer restriction legend on each share of Common Stock delivered pursuant to the Conversion Notice, in form and substance satisfactory to the Investor;
(iv) The Investor shall have received the opinion of The C▇▇▇▇ Law Group, LLP, the Company’s outside counsel, or such other law firm acceptable to consummate the Investor, dated as of the Closing Date, in form and substance satisfactory to Investor (in its sole discretion);
(v) The representations and warranties made by the Company in Section 4 of this Agreement shall be true and correct as of the date hereof and at and as of the Closing Date as if made at and as of the Closing Date and the Company shall have complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing;
(vi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the transactions contemplated hereby; and
(vii) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement shall be subject to as the fulfillment, at Investor or prior to Closing, of each of the following conditions precedent (any or all of which its counsel may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Datereasonably request.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Securities Redemption and Pay Off Agreement (China VoIP & Digital Telecom Inc.)
Conditions to Closing. (ai) nStor's obligation The obligations of Purchaser to consummate close the transactions contemplated by this Agreement shall be subject to the fulfillment, satisfaction prior to the Closing Date of the following conditions:
(a) The representations and warranties of Seller described in Article 6 that are qualified by materiality or with reference to a Material Adverse Effect shall be true and accurate and those not so qualified shall be true and accurate in all material respects as of the Closing Date and Seller shall have performed in all material respects those covenants and agreements of Seller set forth herein that are required to be performed at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(iib) ▇▇▇▇▇ shall have delivered to nStor Except for approvals and consents customarily obtained after Closing, all filings with any Governmental Authority and all approvals, other consents or assignments to be obtained by ▇▇▇▇▇ and of third parties necessary for the consummation of the transactions contemplated herebyby this Agreement shall have been obtained, effected or waived and all required waiting periods (including under the HSR Act, if applicable) shall have expired.
(iiic) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any No material suit, action action, litigation or other proceeding by any private third party shall be pending before any Governmental Authority seeking injunction or governmental agencyorder enjoining, commission, bureau restraining or body seeking to restrain or prohibit any otherwise prohibiting the consummation of the transactions contemplated by this Agreement.
(vid) ▇. ▇▇▇▇▇ Seller shall have entered into Employment Agreement as provided for delivered, or is ready, willing, and able to deliver, to Purchaser, the deliverables of Sellers set forth in Section 3(a) hereof3(B).
(viie) Each representation All consents and warranty of ▇▇▇▇▇ contained in this Agreement approvals described on Schedule C shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such timehave been obtained.
(viiif) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date Purchaser shall have received a copy of the 1998 10-K until the Closing Dateproperly and fully executed and delivered Gas Gathering and Processing Agreement between Seller and [REDACTED]*, as amended by Amendment No. 1 to Gas Gathering and Processing Agreement.
(bii) The obligations of ▇▇▇▇▇ Seller to consummate close the transactions contemplated by this Agreement shall be subject to the fulfillment, satisfaction prior to the Closing Date of the following conditions:
(a) The representations and warranties of Purchaser set forth in Article 6 that are qualified by materiality or with reference to a Material Adverse Effect shall be true and accurate and those not so qualified shall be true and accurate in all material respects as of the Closing Date and Purchaser shall have performed in all material respects those covenants and agreements of Purchaser set forth herein that are required to be performed at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(iib) nStor shall have delivered to ▇▇▇▇▇ Except for approvals and consents customarily obtained after Closing, all filings with any Governmental Authority and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated herebyby this Agreement shall have been obtained, effected or waived and all required waiting periods (including under the HSR Act, if applicable) shall have expired.
(iiic) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any No material suit, action action, litigation or other proceeding by any private third party shall be pending before any Governmental Authority seeking injunction or governmental agencyorder enjoining, commission, bureau restraining or body seeking to restrain or prohibit any otherwise prohibiting the consummation of the transactions contemplated by this Agreement.
(d) Purchaser shall have delivered, or is ready, willing, and able to deliver, to Seller, the deliverables of Purchaser set forth in Section 3(B).
Appears in 1 contract
Conditions to Closing. SECTION 6.1 Conditions to Each Party's Obligation Under this Agreement. The respective obligations of (ai) nStor's obligation the Purchaser to consummate purchase and pay for the transactions contemplated by this Agreement shall be Shares and (ii) the Seller to sell the Shares, at the Closing are subject to the fulfillment, at satisfaction or prior to Closing, of each waiver of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.:
(iia) ▇▇▇▇▇ shall have delivered to nStor the receipt of regulatory approvals and the expiration of any applicable waiting period with respect thereto; and
(b) the Closing will not violate any injunction, order or decree of any court or governmental body having competent jurisdiction, and all approvalsthere will be no litigation pending which, consents if adversely determined, would enjoin, materially interfere with or assignments to be obtained by ▇▇▇▇▇ and necessary for require the consummation payment of material damages in connection with the transactions transaction contemplated hereby.
(iii) nStor SECTION 6.2 Conditions to the Obligations of the Purchaser Under this Agreement. The obligations of the Purchaser to purchase and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours pay for the Shares at the Closing are subject to all offices, facilities, properties, assets, books, agreements, files and records the satisfaction or waiver of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing following conditions on or prior to the Closing Date.:
(va) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any all representations and warranties of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement Seller shall be true and correct both at in all material respects as of the date on which this Agreement is signed hereof and at and as of the Closing Date Closing, with the same force and effect as if though made anew at on and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.Closing;
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor Seller shall have performed in all of its material respects all obligations and agreements and complied in all material respects with all of its covenants required and conditions contained in this Agreement to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.;
(iic) nStor the Seller shall have delivered a certificate of its President certifying to ▇▇▇▇▇ the satisfaction of the conditions contained in Sections 6.2(a) and 6.2(b);
(d) the Purchaser shall have received the Opinion referenced in Section 1.4(f);
(e) the Purchaser shall be satisfied that the transfers contemplated in Section 4.3 have occurred;
(f) the Company shall have been released from or there shall have been discharged, at no cost to the Company, any and all approvalsobligations for indebtedness for borrowed money (including capitalized leases), consents or assignments including, without limitation, all intercompany obligations and all liens in connection therewith;
(g) except as otherwise agreed to be obtained by nStor the Purchaser, the directors and necessary for the consummation officers of the transactions contemplated hereby.
(iii) There Company shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.submitted their resignations;
Appears in 1 contract
Sources: Stock Purchase Agreement (Ameritruck Distribution Corp)
Conditions to Closing. (a) nStor's The obligation of Buyer to consummate the transactions contemplated by this Agreement shall be is subject to the fulfillment, fulfillment at or prior to Closingthe Closing Date of the following conditions; provided, Buyer, in its sole discretion, may (without waiving any of each its other rights hereunder) waive any of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):and elect to proceed with the Closing:
(i) ▇▇▇▇▇ The representations and warranties of Seller and the Shareholders set forth in Article 3 shall be true and correct in all Material respects at and as of the Closing Date;
(ii) The Seller and the Shareholders shall have performed all of the obligations and complied with all of their respective covenants hereunder in all Material respects through the covenants Closing;
(iii) Seller shall have procured all of the governmental or third party consents and approvals disclosed or required to be performed disclosed in the Schedules including any landlord consents related to any rental property;
(iv) The Seller and the Shareholders shall have delivered to Buyer a certificate (without qualification as to knowledge or materiality or otherwise) to the effect that each of the conditions specified above in Section 4.2(a)(i)-(iii) is satisfied in all respects;
(v) No order shall have been entered and remain in effect in any action or proceeding before any federal, state, foreign, or local court or governmental agency or other federal, state, foreign, or local regulatory or administrative agency or commission that would prevent or make illegal the consummation of the transactions contemplated to occur at the Closing;
(vi) Seller shall have paid or made arrangements satisfactory to Buyer for the payment of all wages, salaries, and associated taxes, accrued to all of the NTPC Employees and the Key Employees. Seller shall be responsible for wage information reports (Form W-2 and 1099 reports) for wages paid by Seller to its employees and independent contractors;
(vii) Seller shall have released each of the NTPC Employees from its employment agreement with Seller;
(viii) Substantially all NTPC Employees shall have agreed to become employees of Metamor Technologies, Ltd. or such other subsidiary of Buyer as designated by Buyer after the Closing;
(ix) Buyer shall have completed, and be satisfied in its sole discretion with the results of, its interviews with those employees of Seller to be complied with mutually agreed upon by them under this Agreement on or prior to the Closing Date.Buyer and Seller;
(iix) Buyer shall have completed, and be satisfied in its sole discretion with the results of, its interview with Caterpillar Inc.;
(xi) Marc ▇. ▇▇▇▇▇▇, ▇.C. of Simonds, Winslow, Will▇▇ & Abbo▇▇, ▇▇unsel to Seller, shall have delivered to nStor any a legal opinion substantially in the form attached hereto as Exhibit D;
(xii) No Material adverse change shall have occurred in connection with the Business or the future prospects of the Business; and
(xiii) Buyer shall be satisfied that all authorizations, notices and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor hereby under any and its accountantsall contracts, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records instruments or arrangements of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior Seller related to the Closing Date.
(v) There shall not Business have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or obtained and/or delivered pursuant to the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as terms of such time.
(viii) There has not been any material adverse change in the businesscontracts, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Dateinstruments or arrangements.
(b) The obligations obligation of ▇▇▇▇▇ Seller and the Shareholders to consummate the transactions contemplated by this Agreement shall be is subject to the fulfillment, fulfillment at or prior to Closingthe Closing Date of the following conditions; provided, Seller and the Shareholders, in their discretion, may (without waiving any of each its other rights hereunder) waive any of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):and elect to proceed with the Closing:
(i) nStor The representations and warranties set forth in Article 3A above shall be true and correct in all material respects at and as of the Closing Date;
(ii) Buyer shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to hereunder in all material respects through the Closing Date.Closing;
(iiiii) nStor No order shall have delivered to ▇▇▇▇▇ been entered and remain in effect in any and all approvalsaction or proceeding before any federal, consents state, foreign, or assignments to be obtained by nStor and necessary for local court or governmental agency or other federal, state, foreign, or local regulatory or administrative agency or commission that would prevent or make illegal the consummation of the transactions contemplated hereby.to occur at the Closing; and
(iiiiv) There Buyer shall not have been instituted, pending delivered to the Seller and the Shareholders a certificate (without qualification as to knowledge or threatened against Andataco, ▇▇▇▇▇, nStor materiality or otherwise) to the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any effect that each of the transactions contemplated by this Agreementconditions specified above in Section 4.2(b)(i)-(ii) is satisfied in all respects.
Appears in 1 contract
Conditions to Closing. (a) nStor's obligation to consummate the transactions contemplated by this Agreement 3.2.1 The Closing shall be subject to the fulfillmentsatisfaction or valid waiver by the Company, at on the one hand, or prior to Closingthe Subscriber, on the other, of each of the following conditions precedent (any or all of which may be waived in writingthat, in whole or in part, by nStor):on the Closing Date:
(i) ▇▇▇▇▇ No suspension of the qualification of the Shares for offering or sale or trading in any jurisdiction, or initiation or threatening of any proceedings for any of such purposes, shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Dateoccurred.
(ii) ▇▇▇▇▇ No governmental authority shall have delivered to nStor enacted, issued, promulgated, enforced or entered any judgment, order, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and all approvals, consents has the effect of making consummation of the transactions contemplated hereby illegal or assignments to be obtained by ▇▇▇▇▇ and necessary for the otherwise preventing or prohibiting consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives All conditions precedent to the consummation of the Transaction set forth in the Transaction Agreement shall have had full and complete access during normal business hours been satisfied or waived (other than those conditions that, by their nature, may only be satisfied at the consummation of the Transaction, but subject to all offices, facilities, properties, assets, books, agreements, files and records satisfaction of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andatacosuch conditions as of the consummation of the Transaction).
(iv) nStor No Material Adverse Effect (as defined in the Transaction Agreement) shall have received occurred between the nStor Financing date of the Transaction Agreement and the Closing Date that is continuing.
3.2.2 The obligation of the Company to consummate the Closing shall be subject to the satisfaction or valid waiver by the Company of the additional conditions that, on or prior to the Closing Date.:
(vi) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any All representations and warranties of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ Subscriber contained in this Subscription Agreement shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date (other than those representations and warranties expressly made as if made anew at of an earlier date, which shall be true and correct in all material respects as of such timedate), and consummation of the Closing shall constitute a reaffirmation by Subscriber of each of the representations, warranties and agreements contained in this Subscription Agreement as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all respects as of such date).
(viiiii) There has not been any The Subscriber shall have performed or complied in all material adverse change in the business, operations respects with all agreements and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Datecovenants required by this Subscription Agreement.
(biii) The obligations Subscriber shall have delivered a duly executed Registration Rights Agreement in the form of ▇▇▇▇▇ Exhibit A attached hereto (the “Registration Rights Agreement”).
3.2.3 The obligation of the Subscriber to consummate the transactions contemplated by this Agreement Closing shall be subject to the fulfillmentsatisfaction or valid waiver by the Subscriber of the additional conditions that, at or prior to Closingon the Closing Date:
(i) All representations and warranties of the Company contained in this Subscription Agreement shall be true and correct in all material respects as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all material respects as of such date), and consummation of the Closing shall constitute a reaffirmation by the Company of each of the following conditions precedent (any or all representations, warranties and agreements contained in this Subscription Agreement as of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing DateDate (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all respects as of such date).
(ii) nStor The Company shall have delivered to ▇▇▇▇▇ any performed or complied in all material respects with all agreements and all approvals, consents or assignments to be obtained covenants required by nStor and necessary for the consummation of the transactions contemplated herebythis Subscription Agreement.
(iii) There Pubco shall have delivered a duly executed Registration Rights Agreement.
(iv) Pubco shall have filed with the Nasdaq Capital Market (“Nasdaq”) an application for the listing of the Shares and Nasdaq shall have raised no objection with respect thereto.
(v) The Transaction Agreement (as the same exists on the date of this Subscription Agreement) shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or amended to materially adversely affect the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking economic benefits that the Subscriber would reasonably expect to restrain or prohibit any receive under this Subscription Agreement without having received Subscriber’s prior written consent.
(vi) All conditions precedent to the closing of the transactions contemplated by this AgreementTransaction set forth in the Transaction Agreement shall have been satisfied or waived (other than those conditions that may only be satisfied at the closing of the Transaction, but subject to the satisfaction or waiver of such conditions as of the closing of the Transaction).
Appears in 1 contract
Conditions to Closing. (a) nStor's obligation The obligations of each of the Standby Purchasers to consummate the transactions contemplated by this Agreement shall be hereunder are subject to the fulfillment, at or prior to Closingor on the Closing Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions:
(i) ▇▇▇▇▇ shall have performed all The representations and warranties of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement 3 shall be true and correct both at in all material respects as of the date on which this Agreement is signed hereof and at and as of the Closing Date as if made anew at on such date (except for representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such time.specified date);
(viiiii) There has not been any material adverse change in Subsequent to the business, operations execution and financial conditions delivery of Andataco from this Agreement and after the date of the 1998 10-K until prior to the Closing Date, there shall not have been any Material Adverse Effect; and
(iii) As of the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or The NASDAQ Global Select Market or trading in securities generally on the New York Stock Exchange or The NASDAQ Global Select Market shall not have been suspended or limited or minimum prices shall not have been established on either exchange (a “Market Adverse Effect”).
(b) The obligations of ▇▇▇▇▇ the Company to consummate the transactions contemplated by this Agreement shall be hereunder are subject to the fulfillment, at or prior to Closingor on the Closing Date, of the condition that the representations and warranties of each of the Standby Purchasers in Section 4 shall be true and correct in all material respects as of the date hereof and at and as of the Closing Date as if made as of such date (except for representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such specified date).
(c) The obligations of the Company and each of the Standby Purchasers to consummate the transactions contemplated hereunder in connection with the Rights Offering are subject to the fulfillment, prior to or on the Closing Date, of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):conditions:
(i) nStor No judgment, injunction, decree or other legal restraint shall prohibit, or have performed all the effect of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvalsrendering unachievable, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor Rights Offering or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the material transactions contemplated by this Agreement;
(ii) No stop order suspending the effectiveness of the Rights Offering Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or otherwise shall have been complied with;
(iii) The New Shares and the Securities shall have been authorized for listing on The NASDAQ Global Select Market; and
(iv) Any applicable waiting period shall have expired or been terminated thereunder with respect to such purchase.
Appears in 1 contract
Conditions to Closing. (a) nStor's The Subscriber’s obligation to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each hereby are conditioned upon satisfaction of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):precedent:
(ia) ▇▇▇▇▇ shall have performed all As of the obligations and complied with all of the covenants required to Closing, no legal action, suit or proceeding shall be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking that seeks to restrain or prohibit any of the transactions contemplated by this Agreement.
(vib) The representations and warranties of the Company contained in this Agreement shall have been true and correct in all material respects on the date of this Agreement and shall be true and correct as of the Closing as if made on the Closing Date (unless as of a specific date therein in which case they shall be accurate as of such date).
(c) All obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed
(d) The Subscriber shall have received the opinion of Sichenzia R▇. ▇▇ ▇▇▇▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇▇▇ contained in this Agreement shall be true and correct both at LLP, the date on which this Agreement is signed and at and Company's outside counsel, dated as of the Closing Date as if made anew Date, in form and substance satisfactory to the Subscribers representing at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date least 60% of the 1998 10-K until aggregate number of shares of Common Stock issued or issuable under the Closing Date.
Preferred Shares and Warrants (b) the "Required Holders”). The obligations of ▇▇▇▇▇ Company’s obligation to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each hereby are conditioned upon satisfaction of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):precedent:
(ia) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation As of the transactions contemplated hereby.
(iii) There Closing, no legal action, suit or proceeding shall not have been instituted, be pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking that seeks to restrain or prohibit any of the transactions contemplated by this Agreement.
(b) The representations and warranties of the Subscriber contained in this Agreement shall have been true and correct in all material respects on the date of this Agreement and shall be true and correct as of the Closing as if made on the Closing Date (unless as of a specific date therein in which case they shall be accurate as of such date).
(c) All obligations, covenants and agreements of the Subscriber to be performed at or prior to the Closing Date shall have been performed
Appears in 1 contract
Sources: Subscription Agreement (MGT Capital Investments Inc)
Conditions to Closing. (a) nStorThe Purchaser's obligation to consummate the transactions contemplated by this Agreement shall be obligations --------------------- hereunder are subject to the fulfillment, at or prior to Closing, of each fulfillment of the following conditions precedent (precedent. In the event that any of the conditions set forth below are not satisfied in all material respects, the Purchaser shall not have any obligation to purchase any of the Mortgage Loans or all of which may to pay the Purchase Proceeds as contemplated hereunder and shall instead be waived in writingentitled, in whole or in partits sole discretion, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under terminate this Agreement on or prior to the Closing Datein its entirety.
(iia) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation Each of the transactions contemplated hereby.
(iii) nStor representations and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received warranties made by the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement Seller hereunder shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date as if made anew at and as no event shall have occurred which, with notice or the passage of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Datewould constitute a default under this Agreement.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor Seller shall have delivered to ▇▇▇▇▇ any and the Purchaser all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated herebyMortgage Loan Documents in accordance with Section 2.5 and a complete Mortgage ----------- File with respect to each Mortgage Loan.
(iiic) There Each of the terms and conditions set forth herein which are required to be satisfied on or before the Closing Date shall not have been institutedsatisfied unless waived by the prejudiced party(ies).
(d) The Seller shall have delivered to the Purchaser on or before the Closing Date the following documents:
(1) a fully executed Agreement;
(2) the Mortgage Loan Schedule, pending or threatened against Andatacowhich shall include, ▇▇▇▇▇without limitation, nStor or the Company any suitStated Principal Balance of each Mortgage Loan;
(3) an executed Funding Schedule, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any in the form of Exhibit B --------- hereto;
(5) State Licenses of the transactions contemplated by this Agreement.Seller, if applicable;
Appears in 1 contract
Sources: Assignment, Assumption and Recognition Agreement (United Panam Financial Corp)
Conditions to Closing. (a) nStor's obligation The obligations of Buyer and Seller to consummate the Closing are subject to the satisfaction of the following conditions:
(i) No provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the consummation of the Closing.
(ii) Each other party to this Agreement shall have executed and delivered each of the Transaction Documents to be entered into by it, in each case substantially in the form attached as an exhibit to this Agreement, and any other documents or items required to be delivered by it pursuant to Section 3.3.
(b) The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions:
(A) The representations and warranties of Seller contained in this Agreement at the time of its execution and delivery and in any certificate or other writing delivered by Seller pursuant hereto, shall be true and correct in all material respects at and as of the Closing Date, as if made at and as of such date and (B) Buyer shall have received a certificate signed by the an authorized signatory of Seller to the foregoing effect.
(ii) No Governmental Body shall have issued any order and no proceeding challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been instituted by any Person before any Governmental Body and be pending.
(iii) Seller shall have received any required consents (i) to the assignment of each of the agreements listed in Schedule 4.4(c), and (ii) from each third party having a contractual right to consent to the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writingAgreement, in whole or each case in partform and substance reasonably satisfactory to Buyer and its counsel, by nStor):and no such consent shall have been revoked.
(iiv) ▇▇▇▇▇ The existing security agreements between PRF and Seller shall have been amended to terminate PRF’s security interest in the Acquired Assets, and Seller shall have obtained the Collateral Agent’s signature on any documents necessary to effect such termination.
(v) Buyer shall have performed all of the obligations and or complied with in all of the material respects all agreements and covenants required by this Agreement to be performed or to be complied with by them under this Agreement it on or prior to the Closing, and Seller shall have received at the Closing Datea certificate from an appropriate officer of Buyer to that effect.
(iivi) ▇▇▇▇▇ Seller shall have delivered obtained any required approval of shareholders of Seller to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vivii) ▇. ▇▇▇▇▇ The Celltech Development Agreement and any rights or interests of Celltech pursuant thereto or granted thereunder shall have entered into Employment Agreement as been terminated, with a letter agreement from Celltech (or its successor) indicating that there are no remaining rights or interest in favor of Celltech or remaining obligations to Celltech (other than certain payment obligations which may be owed by Seller from payments received by Buyer under Section 2 of this Agreement) thereunder. Seller shall have provided for in Section 3(a) hereofBuyer a fully executed copy of such agreement or instrument terminating the Celltech Development Agreement.
(viiviii) Each representation Seller shall have delivered to Buyer fully executed documents, in form and warranty substance reasonably satisfactory to the Buyer and Buyer’s lenders, providing for releases and discharges of ▇▇▇▇▇ all liens attaching to any of the Acquired Assets.
(ix) The FDA shall not have indicated in writing that it will require a Phase III clinical trial as a condition to reintroduction of the Product into the United States for use in the Included Indication; provided, however, that if the FDA indicates orally on or after November 10, 2005 that it will require a Phase III clinical trial but such indication has not been confirmed in writing by the FDA, the obligation of Buyer to consummate the Closing shall be delayed until the date that is the earlier of (a) 35 days following the date of such oral requirement from the FDA, and (b) the business day next succeeding any retraction or rescission by the FDA, either orally or in writing, of such oral requirement. If written confirmation from the FDA regarding imposition of such clinical trial requirement is received within such 35 day period then Buyer shall not be obligated under this subsection to consummate the Closing.
(c) The obligation of Seller to consummate the Closing is subject to the satisfaction of the following further conditions:
(i) [Reserved]
(A) The representations and warranties of Buyer contained in this Agreement at the time of its execution and delivery and in any certificate or other writing delivered by Buyer pursuant hereto, shall be true and correct both at the date on which this Agreement is signed and in all material respects at and as of the Closing Date Date, as if made anew at and as of such time.
date and (viiiB) There has not been any material adverse change in Seller shall have received a certificate signed by the business, operations and financial conditions an authorized signatory of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject Buyer to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated herebyforegoing effect.
(iii) No Governmental Body shall have issued any order and no proceeding challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been instituted by any Person before any Governmental Body and be pending.
(iv) Seller shall have received any required consents to the assignment of each of the Acquired Contracts, in each case in form and substance reasonably satisfactory to Seller, and no such consent shall have been revoked.
(v) There shall not have been institutedoccurred or be continuing any event or circumstance which could reasonably be expected to have a material adverse effect on Buyer, pending its ability to manufacture, market or threatened against Andatacodistribute the Product, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking its ability to restrain or prohibit any of the transactions contemplated by perform its obligations under this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Indevus Pharmaceuticals Inc)
Conditions to Closing. (a) nStor's Buyer’s obligation to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, satisfaction of each of the following conditions precedent (conditions, any or all of which may be waived in writing, in whole or in part, writing by nStor):the Buyer:
(i) ▇▇▇▇▇ Sellers shall have performed all be ready, willing and able to deliver each of the obligations documents and complied with all of the covenants required items referred to be performed in Clause 3.3 at or to be complied with by them under this Agreement on or prior to the Closing Date.before Closing,
(ii) ▇▇▇▇▇ shall have delivered to nStor any The representations and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation warranties of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement Sellers set forth herein shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):,
(i) nStor Sellers shall have performed performed, observed and complied with, in all material respects, all of its obligations the covenants, agreements and conditions required by this Agreement to be performed, observed and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or the Sellers prior to or as of the Closing Date.date of Closing,
(ii) nStor Sellers shall have delivered deliver to ▇▇▇▇▇ any and all approvals, consents or assignments Buyer at Closing a certificate to be obtained by nStor and necessary for the consummation effect that each of the transactions contemplated hereby.conditions provided in Clauses 15(ii) and 15(iii) above have been satisfied in all respects;
(iii) There Sellers shall have provided Buyer with all documents requested in Clause 8.2, and
(iv) Buyer shall have applied for and received a Lease of the Queens Chain abounding the Seller’s property measuring approximately 2.2 acres, the terms of which provide for an annual fee of no more than EC$25,000 and a term of not have been institutedless than fifty (50) years. Notwithstanding anything contained herein to the contrary, pending or threatened against Andataco, ▇▇▇▇▇, nStor or in the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking event Sellers fail to restrain or prohibit satisfy any of the transactions contemplated above conditions and such condition is not waived in writing by Buyer, Buyer may terminate this Agreement, and Buyer shall be entitled to a prompt refund of the DEPOSIT held in escrow by the Escrow Agent. This provision is in addition to the Buyer’s other termination rights provided in this Agreement. The above conditions to closing are in addition to the other conditions to closings (and right to receive a refund of the DEPOSIT) set forth in this Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Cci Group Inc)
Conditions to Closing. (a) nStor's obligation 2.1. The obligations of Selling Shareholders to consummate the transactions contemplated by this Agreement shall be subject to the fulfillmentsatisfaction, fulfillment or written waiver by Selling Shareholders, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions:
(ia) ▇▇▇▇▇ shall have performed all the representations and warranties of the obligations Company set forth in Article 4 shall be true and complied with correct in all material respects, at and as of the covenants required to be performed or to be complied with by them under date of this Agreement on or prior to and the Closing Date.time of Closing;
(iib) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There there shall not have been institutedentered a preliminary or permanent injunction, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action temporary restraining order or other proceeding by judicial or administrative order or decree in any private party or governmental agencyjurisdiction, commission, bureau or body seeking to restrain or prohibit any the effect of which would (i) prevent consummation of the transactions contemplated by this Agreement, or (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction or order shall be in effect), nor shall any law or order which would have any of the foregoing effects have been enacted or promulgated by any governmental authority to which the Company or the Selling Shareholders are subject;
c) the Company shall have paid the Purchase Price; and
d) The VSM Closing shall have occurred substantially simultaneously with the Closing hereunder (in any event chronologically after the payment of the Purchase Price) or the Company shall have exercised the Opt-out Right.
(vi) ▇2.2. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ the Company to consummate the transactions contemplated by this Agreement shall be subject to the fulfillmentsatisfaction, fulfillment or written waiver by the Company, at or prior to Closing, of each of the following conditions precedent (any or conditions:
a) the representations and warranties of the Selling Shareholders set forth in Article 3 shall be true and correct in all material respects, at and as of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all the date of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to and the Closing Date.time of Closing;
(iib) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There there shall not have been institutedentered a preliminary or permanent injunction, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action temporary restraining order or other proceeding by judicial or administrative order or decree in any private party or governmental agencyjurisdiction, commission, bureau or body seeking to restrain or prohibit any the effect of which would (i) prevent consummation of the transactions contemplated by this Agreement, or (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction or order shall be in effect), nor shall any law or order which would have any of the foregoing effects have been enacted or promulgated by any governmental authority to which the Company or the Selling Shareholders are subject;
c) the Selling Shareholders shall have duly and validly delivered the Repurchased Shares and irrevocable stock powers; and
d) The VSM Closing shall have occurred substantially simultaneously with the Closing hereunder (in any event chronologically after the delivery of the Repurchased Shares) or the Company shall have exercised the Opt-out Right.
Appears in 1 contract
Conditions to Closing. At or before the Closing, the parties agree that the following conditions shall be satisfied (or mutually waived in writing by the parties):
(a) nStor's obligation to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each Each of the following conditions precedent (any or all representations and warranties of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at in all material respects, other than representations and warranties that contain materiality or knowledge standards or qualifications (which representations and warranties shall be true and correct in all respects) on the date hereof and on which this Agreement is signed and at and as of the Closing Date as if though made anew at on and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor Company shall have performed all of its obligations and complied in all material respects with all of its agreements, covenants and conditions required to be performed or to be and complied with by it Company under the Offering Documents at or before the Closing.
(c) No order suspending the use of the Memorandum or enjoining the offering or sale of the Securities shall have been issued, and no proceedings for that purpose or a similar purpose shall have been initiated and pending, or, to Company’s knowledge, are contemplated or threatened.
(d) The Chief Executive Officer of Company shall have duly executed and delivered a certificate to Brookline certifying on behalf of Company that: (i) there have been no undisclosed material and adverse changes in the business condition (financial or otherwise) of Company from the date of the latest financial statements included in the SEC Reports and (ii) the conditions set forth in subparagraphs (a), (b), (c) and (g) in this Agreement on Section 7 have been fulfilled.
(e) Company shall have paid all fees, costs and expenses due pursuant to this Agreement, including, without limitation, those set forth in Sections 4 and 6(f) of this Agreement.
(f) All proceedings taken at or prior to the Closing Date.
(ii) nStor in connection with the authorization, issuance and sale of the Securities will be reasonably satisfactory in form and substance to Brookline and its counsel, and such counsel shall have delivered to ▇▇▇▇▇ any been furnished with all such documents, certificates and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of opinions as they may reasonably request upon reasonable prior notice in connection with the transactions contemplated hereby.
(iiig) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or All shares of common stock of the Company which may be issued at or following the Closing upon exercise of any suitwarrants and the Agent’s Warrants will be upon issuance, action or validly issued and fully-paid and non-assessable.
(h) Brookline shall have completed, to Brookline’s reasonable satisfaction, its due diligence review of Company and Company shall have fulfilled such other proceeding by any private party or governmental agencyconditions and requirements as Brookline may, commissionin its sole discretion, bureau or body seeking reasonably request from time to restrain or prohibit any of the transactions contemplated by this Agreementtime.
Appears in 1 contract
Conditions to Closing. The Closing Date shall not occur until the Agent has received each of the following:
(a) nStor's obligation to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of from each of the following conditions precedent parties hereto of a duly executed counterpart of this Agreement signed by such party;
(any or all of which may be waived in writing, in whole or in part, by nStor):
b) a duly executed (i) Syndicated Dollar Note, (ii) Syndicated Foreign Currency Note and (iii) Money Market Note for the account of each Bank;
(c) from the Guarantors, a duly executed Guaranty;
(d) from the Borrowers and the Guarantors, a duly executed Indemnity, Subrogation and Contribution Agreement;
(e) an opinion letter (together with any opinions of local counsel relied on therein) of ▇▇▇▇▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) & ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or PLLP, special counsel for the Company any suitBorrowers and the Guarantors, action or other proceeding by any private party or governmental agencysubstantially in the form of Exhibit D, commissiondated as of the Closing Date, bureau or body seeking and covering such additional matters relating to restrain or prohibit any of the transactions contemplated by this Agreement.hereby as the Agent or any Bank may reasonably request;
(vif) an opinion of ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC, special counsel for the Agent, dated as of the Closing Date, substantially in the form of Exhibit E and covering such additional matters relating to the transactions contemplated hereby as the Agent may reasonably request;
(g) a certificate (the "Closing Certificate") substantially in the form of Exhibit H, dated as of the Closing Date, signed by a principal financial officer of the Parent, to the effect that (i) no Default has occurred and is continuing on the Closing Date, (ii) the representations and warranties of the Parent contained in this Agreement shall be Article IV are true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.(iii) since October 29, 1999, there has been no event, act, condition or occurrence having a Material Adverse Affect;
(viiih) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillmentprovisions of Section 5.23 hereinbelow, at all documents which the Agent or prior any Bank may reasonably request relating to Closingthe existence of the Borrowers and the Guarantors, the corporate authority for and the validity of this Agreement, the Notes, the Guaranty, the Indemnity, Subrogation and Contribution Agreement and the other Loan Documents and any other matters relevant hereto or thereto, all in form and substance reasonably satisfactory to the Agent, including, without limitation, an Officer's Certificate of the Borrowers and the Guarantors substantially in the form of Exhibit I, signed by the Secretary or an Assistant Secretary of the Borrowers and the Guarantors, certifying as to the names, true signatures and incumbency of the officer or officers, respectively, of each the Borrowers and the Guarantors, as applicable, authorized to execute and deliver the Loan Documents or the Guaranty and the Indemnity, Subrogation and Contribution Agreement, as applicable, and certified copies of the following conditions precedent (any or all of which may be waived in writingitems, in whole or in part, by ▇▇▇▇▇):for the Borrowers and the Guarantors:
(i) nStor shall have performed all Certificate/Articles of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.Incorporation;
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.Bylaws;
(iii) There a Certificate of the Secretary of State of the state of incorporation as to the good standing of each corporation in such state; and
(iv) the action taken by the Board of Directors authorizing the execution, delivery and performance of this Agreement, the Note and the other Loan Documents, or the Guaranty and the Indemnity, Subrogation and Contribution Agreement, as applicable; and
(i) evidence satisfactory to the Agent that the Commitments under the Existing Credit Agreement shall not have been institutedterminated and the Debt evidenced thereby shall have been repaid in full, pending or threatened against Andataco, ▇▇▇▇▇, nStor or that such Commitments shall be terminated and such Debt shall be repaid in full simultaneously with the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any initial funding of the transactions contemplated by this AgreementLoans hereunder.
Appears in 1 contract
Sources: Credit Agreement (Valspar Corp)
Conditions to Closing. (a) nStor's obligation Conditions to consummate the transactions contemplated by this Agreement shall Obligations of the Company and the Shareholder. The respective obligations of each party to effect the Closing will be subject to the fulfillment, at satisfaction or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement waiver on or prior to the Closing DateDate of each of the following conditions:
(i) There will not have been issued and be in effect any law, order, decree, or judgment of or in any court or tribunal of competent jurisdiction which makes the consummation of the transactions contemplated hereby illegal.
(ii) ▇▇▇▇▇ shall No statute, rule, order, decree or regulation will have delivered to nStor been enacted or promulgated by any Governmental Entity of competent jurisdiction (whether temporary, preliminary or permanent) or otherwise become applicable which will be in effect and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for will have the effect of prohibiting the consummation of this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby or making this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby illegal.
(iii) There will be no order or injunction of a Governmental Entity of competent jurisdiction (whether temporary, preliminary or permanent) in effect precluding, restraining, enjoining or prohibiting consummation of this Agreement and the transactions contemplated hereby.
(iiiiv) nStor and its accountantsAt the Stockholders Meeting of the Company’s shareholders duly convened by the Board, attorneys and other representatives the Transactions shall have had full and complete access during normal business hours to all officesbeen approved by vote of the requisite shareholders of the Company, facilities, properties, assets, books, agreements, files and records of Andatacoin accordance with applicable law, including financial the rules and operating data regulations of Nasdaq and other information regarding ▇▇▇▇▇ the Company’s articles of incorporation and Andataco.
by-laws (iv) nStor shall have received the nStor Financing on or prior to the Closing Date“Requisite Approval”).
(v) There shall not All conditions to the closing under the FIS Stock Purchase Agreement will have been instituted, pending satisfied or threatened against Andataco, ▇▇▇▇▇, nStor or waived to permit the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any simultaneous closing of all the transactions contemplated by this AgreementTransactions.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at All documents necessary to effect the date on which this Agreement is signed and at and Required Terminations as of the Closing Date as if made anew at will have been executed and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated delivered by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior parties to the Closing Dateaffected agreements.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Recapitalization Agreement (CDR Cookie Acquisition LLC)
Conditions to Closing. (a) nStor6.1 Conditions to Purchaser's or FIC's Obligations. The obligation of Purchaser or FIC to consummate the transactions contemplated to be performed by this Agreement shall be it in connection with the Closing is subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions:
(ia) ▇▇▇▇▇ No court or governmental entity of competent jurisdiction shall have performed all of the obligations and complied with all of the covenants required to be performed enacted, issued, promulgated, enforced or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor entered any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action order or other proceeding by any private party law (whether temporary, preliminary or governmental agency, commission, bureau permanent) that is in effect and enjoins or body seeking to restrain or prohibit any otherwise prohibits consummation of the transactions contemplated by this Agreement.
(vib) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for The representations and warranties of the Company, Seller, and TCG contained herein (or in Section 3(aany certificate delivered pursuant hereto) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement that are qualified by reference to a Material Adverse Effect shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of the Closing and all other representations and warranties of the Company, Seller and TCG shall be true and correct as of the Closing as if made as of the Closing, except for such timeinaccuracies as have not had a Material Adverse Effect, and Purchaser shall have received a certificate to such effect dated the Closing Date and executed by a duly authorized officer of the Company.
(viiic) There has not been any material adverse change in the business, operations The covenants and financial conditions of Andataco from and after the date agreements of the 1998 10-K until Company, the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations Seller and complied with all of its covenants required TCG to be performed or to be complied with by it under this Agreement on or prior to the Closing Dateshall have been duly performed in all material respects, and Purchaser shall have received a certificate to such effect dated the Closing Date and executed by a duly authorized officer of the Company.
(iid) nStor Seller and TCG shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for certificates representing the consummation Company Stock in the name of the transactions contemplated herebyPurchaser.
(iiie) There Johnson shall not have been instituted, pending or threatened against Andataco, entered into an ▇▇▇▇▇▇ment contract with FICFS.
6.2 Conditions to the Company's, nStor Seller's and TCG's Obligations. The obligation of the Company, the Seller and TCG to consummate the transactions to be performed by them in connection with the Closing is subject to satisfaction of the following conditions:
(a) No court or the Company governmental entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any suit, action order or other proceeding by any private party law (whether temporary, preliminary or governmental agency, commission, bureau permanent) that is in effect and enjoins or body seeking to restrain or prohibit any otherwise prohibits consummation of the transactions contemplated by this Agreement.
(b) The representations and warranties of Purchaser contained herein (or in any certificate delivered pursuant hereto) that are qualified by reference to a material adverse effect shall be true and correct as of the Closing as if made as of the Closing and all other representations and warranties of Purchaser shall be true and correct as of the Closing as if made as of the Closing, except for such inaccuracies as would not materially impair the transactions contemplated by this Agreement, and the Company shall have received a certificate to such effect dated the Closing Date and executed by Purchaser.
(c) The covenants and agreements of Purchaser to be performed on or prior to the Closing shall have been duly performed in all material respects, and the Company shall have received a certificate to such effect dated the Closing Date and executed by Purchaser.
(d) Purchaser shall have delivered the Purchase Price.
(e) FICFS shall have entered into an employment contract with Johnson.
Appears in 1 contract
Sources: Stock Purchase Agreement (Financial Industries Corp)
Conditions to Closing. (a) nStor's obligation to consummate The several obligations of the transactions contemplated by Placement Agents under this Agreement shall to purchase the Notes will be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions:
(ia) ▇▇▇▇▇ shall have performed all Subsequent to the date of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or and prior to the Closing Date.,
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of GST Funding's, GST's or GST USA's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There there shall not have been institutedoccurred any change, pending or threatened against Andatacoany development involving a prospective change, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the businesscondition, operations financial or otherwise, or in the earnings, business or operations, of GST and financial conditions of Andataco its subsidiaries, taken as a whole, from that set forth in the Preliminary Memorandum that, in your judgment, is material and after adverse and that makes it, in your judgment, impracticable to market the date of Notes on the 1998 10-K until terms and in the Closing Datemanner contemplated in the Final Memorandum.
(b) The obligations Placement Agents shall have received on the Closing Date certificates, dated the Closing Date and signed, respectively, by an executive officer of ▇▇▇▇▇ GST Funding, GST and GST USA, to consummate the effect set forth in clause (a)(i) of this Section 4 and to the effect that the representations and warranties of GST Funding, GST and GST USA contained in this Agreement are true and correct in all material respects as of the Closing Date and that each of GST Funding, GST and GST USA has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied in connection with the transactions contemplated hereby or by this Agreement the Memorandum on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of their knowledge as to proceedings threatened.
(c) You shall be subject to have received on the fulfillmentClosing Date an opinion, at or prior to Closingdated the Closing Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by i) Olshan Grundman Frome & Ros▇▇▇▇▇):▇g ▇▇▇, counsel f▇▇ ▇▇▇ ▇▇▇ding, GST and GST USA, in the form attached hereto as Exhibit C, (ii) McCarthy Tetrault, Canadi▇▇ ▇▇▇▇se▇ ▇▇▇ ▇▇T, in the form attached hereto as Exhibit D, (iii) Thorsteinssons, Canadian tax counsel for GST, in the form attached hereto as Exhibit E, (iv) Swidler & Berlin, Charte▇▇▇, ▇pecial regulatory counsel for GST Funding, GST and GST USA, in the form attached hereto as Exhibit F and (v) local regulatory counsel in the forms attached hereto as Exhibit G.
(d) You shall have received on the Closing Date an opinion of Shearman & Sterling, counsel for the Placement Agents, dated the Closing Date, with respect to such matters as you may reasonably request.
(e) You shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof and the Closing Date, respectively, in form and substance satisfactory to you, from KPMG Peat Marwick LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Final Memorandum.
(f) GST Funding, GST and GST USA shall have complied with the provisions of subsection (a) of Section 5 hereof with respect to the furnishing of Final Memorandum on the business day next following the date of this Agreement, in such quantities as you shall have reasonably requested.
(g) GST Funding shall have received from GST USA a capital contribution in cash of at least $2 million.
(h) GST Funding, GST USA and GST shall have entered into the Reimbursement and Commitment Fee Agreement and such agreement shall be in full force and effect.
(i) nStor You shall have performed all of its obligations received such other documents and complied with all of its covenants required to be performed certificates as are reasonably requested by you or to be complied with by it under this Agreement on or prior to the Closing Dateyour counsel.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Placement Agreement (GST Usa Inc)
Conditions to Closing. (a) nStor's obligation The obligations of each of the Standby Purchasers to consummate the transactions contemplated by this Agreement shall be hereunder are subject to the fulfillment, at or prior to Closing, of each or on the Closing Date,of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions:
(i) ▇▇▇▇▇ shall have performed all The representations and warranties of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement 4 shall be true and correct both at in all material respects as of the date on which this Agreement is signed hereof and at and as of the Closing Date as if made anew at on such date (except for representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such time.specified date);
(viiiii) There has not been any material adverse change in Subsequent to the business, operations execution and financial conditions delivery of Andataco from this Agreement and after the date of the 1998 10-K until prior to the Closing Date, there shall not have been any Material Adverse Effect and no event shall have occurred or circumstance shall exist which would reasonably likely result in a Material Adverse Effect; and
(iii) As of the Closing Date, none of the following events shall have occurred and be continuing: (A) trading in the Common Stock shall have been suspended by the Commission or (B) a banking moratorium shall have been declared either by U.S. federal or New York State authorities (collectively, a “Market Adverse Effect”).
(b) The obligations of ▇▇▇▇▇ the Company to consummate the transactions contemplated by this Agreement shall be hereunder are subject to the fulfillment, at or prior to Closingor on the Closing Date, of the following conditions:
(i) The representations and warranties of each of the Standby Purchasers in Section 5 shall be true and correct in all material respects as of the date hereof and at and as of the Closing Date as if made as of such date (except for representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such specified date); and
(ii) Each Standby Purchaser shall have executed and delivered to the Company a duly executed copy of this Agreement.
(c) The obligations of each of the Company and the Standby Purchasers to consummate the transactions contemplated hereunder in connection with the Rights Offering are subject to the fulfillment, prior to or on the Closing Date, of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):conditions:
(i) nStor No judgment, injunction, decree or other legal restraint shall prohibit, or have performed all the effect of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvalsrendering unachievable, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending Rights Offering or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement; or
(ii) The Rights Offering Registration Statement shall have been filed with the Commission and declared effective; no stop order suspending the effectiveness of the Rights Offering Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or otherwise shall have been complied with.
Appears in 1 contract
Conditions to Closing. (a) nStor's The obligation of the Sellers to consummate the transactions contemplated by this Agreement shall be is subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent on or before the Closing Date:
(a) Buyer shall have delivered the Closing Funds, as adjusted pursuant to Section 2.2(a), to the Sellers or, at the Sellers’ direction, to any or all third parties in satisfaction of which may be waived in writingFunded Indebtedness, and the Escrow Funds to the Escrow Agent, in whole or each case in part, by nStor):accordance with the terms of this Agreement;
(ib) ▇▇▇▇▇ The representations and warranties set forth in Article 4 shall have been true and correct in all material respects as of the effective date of this Agreement and shall be true and correct in all material respects as of the Closing Date as though made on the Closing Date, except for those representations and warranties which address matters only as of a particular date, which shall continue to be true and correct in all material respects as of that particular date, and Buyer shall have delivered to the Sellers a certificate to that effect;
(c) Buyer shall have performed all of the obligations and or complied with all of the covenants and agreements required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ Agreement, and Buyer shall have delivered to nStor any and all approvals, consents or assignments the Sellers a certificate to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.that effect;
(iiid) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor Buyer shall have received the nStor Financing on no notice of legal action or prior to the Closing Date.
(v) There proceeding which shall not have been instituted, pending instituted or overtly threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body agency seeking to restrain restrain, prohibit, invalidate or prohibit any otherwise affect the consummation of the transactions contemplated by this Agreement.;
(vie) ▇. ▇▇▇▇▇ Buyer shall have entered into Employment Agreement as provided for executed and delivered to the Sellers original or facsimile counterparts of each Transaction Document to which it is a party and the Escrow Agent shall have executed and delivered to the Sellers original or facsimile counterparts to the Escrow Agreement, in each case in accordance with the provision in Section 3(a) hereof.8.1 permitting the use of facsimile copies;
(viif) Each representation The Sellers shall have received a good standing certificate and warranty a copy of ▇▇▇▇▇ contained in the Charter Documents and resolutions of the managing member (or other authorizing actions or instruments) of Buyer authorizing the execution, delivery and performance by Buyer of this Agreement shall be true and correct both at the date on which transactions contemplated by this Agreement, and an incumbency certificate evidencing the authority and specimen signature of each manager or officer of Buyer executing this Agreement is signed and at any other certificate provided pursuant to this Section 7.1, each in form and substance reasonably satisfactory to the Sellers and certified by the secretary or an assistant secretary of Buyer (or another responsible officer of Buyer) as of the Closing Date. Such certification shall state that such Charter Documents and resolutions (or other authorizing actions or instruments) have not been amended, modified, revoked or rescinded and are in full force and effect on and as of the Closing Date as if made anew at and as that all proceedings required to be taken on the part of such time.
(viii) There has not been any material adverse change Buyer in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate connection with the transactions contemplated by this Agreement shall be subject have been duly authorized and taken;
(g) All necessary filings pursuant to the fulfillment, at HSR Act shall have been made and all applicable waiting periods thereunder shall have expired or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):been terminated; and
(ih) nStor The Sellers shall have performed all received a release and waiver from the Companies which is in the form of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.Exhibit “G.”
Appears in 1 contract
Sources: Business Purchase Agreement (Macquarie Infrastructure CO LLC)
Conditions to Closing. (a) nStor's obligation The respective obligations of each party to consummate effect the transactions contemplated by this Agreement shall be subject to the fulfillmentfulfillment on or prior to the Closing Date of the condition that no order, writ, injunction or decree shall have been entered and be in effect that restrains, enjoins or invalidates, or otherwise materially adversely affects the transactions contemplated by this Agreement, and no action, suit or other proceeding shall be pending or threatened in writing that has a reasonable likelihood of resulting in any such order, writ, injunction or decree.
(b) The obligations of Grace and Grace Parent under this Agreement to consummate the transactions contemplated hereby to be consummated at the Closing shall be subject to the satisfaction, at or prior to the Closing, of each all of the following conditions precedent (conditions, any one or all more of which may be waived in writing, writing at the option of Grace and/or Grace Parent in whole or in part, by nStor):its sole discretion:
(i) ▇▇▇▇▇ shall have performed all representations and warranties of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained Trust in this Agreement shall be true true, complete and correct both at the date in all material respects, in each case when made and on which this Agreement is signed and at and as of the Closing Date as if made anew at on and as of such timethe Closing Date;
(ii) all of the terms, covenants and conditions to be complied with and performed by the Trust on or prior to the Closing Date shall have been complied with or performed in all material respects; and
(iii) the Trust shall have made all the deliveries required under, and shall otherwise have fully complied with Section 4(a) hereof.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(bc) The obligations of ▇▇▇▇▇ the Trust under this Agreement to consummate the transactions contemplated by this Agreement hereby to be consummated at the Closing shall be subject to the fulfillmentsatisfaction, at or prior to the Closing, of each all of the following conditions precedent (conditions, any one or all more of which may be waived in writing, writing at the option of the Trust in whole or in part, by ▇▇▇▇▇):its sole discretion:
(i) nStor all representations and warranties of Grace and Grace Parent in this Agreement shall have performed be true, complete and correct in all material respects, in each case when made and on and as of the Closing Date as if made on and as of the Closing Date;
(ii) all of its obligations the terms, covenants and complied with all of its covenants required to be performed or conditions to be complied with and performed by it under this Agreement Grace and Grace Parent on or prior to the Closing Date.
(ii) nStor Date shall have delivered to ▇▇▇▇▇ any and been complied with or performed in all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.material respects; and
(iii) There Grace and Grace Parent shall not have been institutedmade all the deliveries required under, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreementand shall otherwise have fully complied with Section 4(b) hereof.
Appears in 1 contract
Sources: Obligation Termination Agreement (WRG Asbestos PI Trust)
Conditions to Closing. The obligation of the respective Parties (awith the Seller and the Company being one Party for purposes of this Section 3.04) nStor's obligation to consummate Close the transactions contemplated by this Agreement shall be purchase and sale of the Shares is subject to the fulfillmentsatisfaction or waiver, at or prior to before the date of Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):and deliveries:
(ia) ▇▇▇▇▇ shall have performed all All of the obligations representations and complied with all warranties of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ respective Party contained in this Agreement shall be true true, correct and correct both at the date complete on which this Agreement is signed and at and as of the Closing Date with the same effect as if though such representations and warranties had been made anew at on and as of such time.
(viii) There has not been any material adverse change in date; all of the businessterms, operations covenants, agreements and financial conditions of Andataco from and after this Agreement to be complied with, performed or satisfied by the date of the 1998 10-K until respective Party at or before the Closing Dateshall have been duly complied with, performed or satisfied.
(b) The obligations No temporary restraining order, preliminary or permanent injunction or other order issued by any court of ▇▇▇▇▇ to consummate competent jurisdiction or other legal or regulatory restraint or provision challenging the transactions contemplated by this Agreement purchase and sale of the Shares or the Purchaser’s ownership thereof, or limiting or restricting the conduct or operation of the business of the Company following the Closing shall be subject to the fulfillmentin effect, at nor shall any proceeding brought by an administrative agency or prior to Closingcommission or other governmental authority or instrumentality, of each domestic or foreign, seeking any of the following conditions precedent (foregoing be pending. There shall be no action, suit, claim or proceeding of any nature pending or all threatened against the Purchaser or the Company, their respective properties or any of which may be waived in writingtheir officers or directors, in whole that could materially and adversely affect the business, assets, liabilities, financial condition, results of operations or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all prospects of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing DateCompany.
(iic) nStor There shall have delivered been no material adverse changes in the business, operations, affairs, prospects, properties, assets, existing and potential liabilities, obligations, profits or condition (financial or otherwise) of the Company the date of the balance sheet in the Company’s most recently filed Annual Report on Form 10-K.
(d) All necessary consents of, and filings with, any governmental authority or agency or third party, relating to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation by the Parties of the transactions contemplated herebyhereby shall have been obtained and made.
(iiie) There Purchaser’s agent identified in Section 3.03 shall not have been institutedreviewed all Certificates, pending or threatened against AndatacoAssignment Documents and other Delivered Documents and confirmed to the Escrow Agent such documents and instruments are in good order.
(f) Seller shall have acquired all of the Company’s pre-Closing assets and business, ▇▇▇▇▇and assumed all of the Company’s pre-Closing liabilities, nStor or and indemnified the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit and the Purchaser from and against any of the transactions contemplated by this AgreementCompany’s pre-Closing liabilities.
Appears in 1 contract
Sources: Agreement for the Purchase of Common Stock (Interups Inc)
Conditions to Closing. 5.1 Conditions to the Trustee Is Obligation at ------------------------------------------ Closing. The obligations of the Trustee hereunder are subject ------- to the fulfillment at or before the Closing of each of the following conditions:
(a) nStor's obligation The representations and warranties contained in Section 3 hereof shall be true on and as of the Closing Date and, the Trustee shall have been furnished with a certificate, dated the Closing Date, to consummate such effect, signed by an authorized officer of UAL.
(b) The Trustee shall have received a cash contribution to the Plan at least equal to the Cash Amount.
(c) No order of any court or administrative agency shall be in effect which restrains or prohibits the transactions contemplated by this Agreement, and no suit, action or other proceedings by any governmental body or other person shall have been instituted which questions the validity or legality of the transactions contemplated by this Agreement shall be subject which suit, action or proceeding the Trustee reasonably determines, upon advice of counsel, is more likely than not to successfully challenge the fulfillment, at validity or prior to Closing, of each legality of the following conditions precedent (any transactions contemplated by this Agreement or all of which may be waived otherwise result in writing, in whole or in part, by nStor):a Material Adverse Effect.
(id) Neither the Trustee nor UAL shall have determined in good faith that the purchase of the Shares would result in a "prohibited transaction" under ERISA or otherwise violate the provisions of applicable law.
(e) The Trustee shall have received UAL's most recent annual report on form 10-K and any subsequently filed Quarterly Reports on Form 10-Q.
(f) The Trustee shall have received from ▇▇▇▇▇▇▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) & ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or counsel to the Company any suitTrustee, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of an opinion in substantially the transactions contemplated by this Agreementform set forth in Schedule 5.1(f) hereto.
(vig) The Trustee shall have received from ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or Vice President-Law and Corporate Secretary, the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of opinion in substantially the transactions contemplated by this Agreement.form set forth in Schedule
Appears in 1 contract
Conditions to Closing. (a) nStor's The obligation of each Purchaser to consummate purchase and pay for the transactions contemplated by this Agreement Shares to be delivered to it at the Closing shall be subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent as of the Closing Date:
(any or all A) Concurrent with the Closing, the Company, the Purchaser and the required number of other signatories to the Third Amended and Restated Investors Agreement shall have entered into the Second Amendment to the Third Amended and Restated Investors Agreement in the form attached hereto as Exhibit C;
(B) Each Purchaser shall have received from Holland & Hart ▇▇▇, counsel for the Company, an opinion in substantially the form attached hereto as Exhibit D, dated as of the Closing Date;
(C) The Company's stockholders shall have approved the Third Amended and Restated Certificate of Incorporation, a copy of which is included in Exhibit B attached hereto (the "Certificate of Incorporation") and shall have waived any preemptive rights they may be waived in writing, in whole or in part, by nStor):have;
(iD) The Company shall have filed the Certificate of Incorporation with the Delaware Secretary of State;
(E) Any applicable waiting periods under the Hart-▇▇▇▇▇-▇▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ itrust Improvements Act of 1976, as amended (the "HSR Act"), with respect to El Paso's acquisition of Shares in the Closing shall have delivered to nStor any and all approvals, consents expired or assignments to be obtained by ▇▇▇▇▇ and necessary for otherwise been terminated;
(F) The Company shall provide a secretary's or officer's certificate regarding (i) the consummation accuracy of the transactions contemplated hereby.
(iii) nStor representations and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records warranties of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the businessDate, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered the satisfaction or fulfillment of all conditions to ▇▇▇▇▇ any the Closing, and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any certification of the transactions contemplated by this Agreement.all resolutions
Appears in 1 contract
Sources: Series C Preferred Stock Purchase Agreement (Velocom Inc)
Conditions to Closing. (a) nStor's The obligation of Buyer to consummate the transactions purchase and sale of the Shares as contemplated by this Agreement shall be hereby is subject to the fulfillment, at satisfaction on or prior to Closing, of each before the Closing Date of the following conditions precedent (set forth below, any or all of which may be waived in writing, in whole or in part, by nStor)::
(i) ▇▇▇▇▇ no preliminary or permanent injunction or other order of any court or other governmental entity shall have performed all of the obligations and complied with all of the covenants required to be performed in effect or to threatened nor shall there be complied with in effect any statute, rule, regulation or executive order promulgated or enacted by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvalsgovernmental entity that, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for in any such case, prevents the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.; and no suit, action, claim, proceeding or investigation before any governmental entity shall have been commenced or threatened by any person or entity seeking to prevent the sale of the Shares or asserting that the sale of all or a portion of the Shares would be unlawful;
(viii) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation the representations and warranty warranties of ▇▇▇▇▇ each Seller contained in this Agreement shall be true and correct both at the date in all respects on which this Agreement is signed and at and as of the Closing Date with the same force and effect as if though such representations and warranties had been made anew at or given on and as of the Closing Date; and each and all of the agreements and covenants of each Seller to be performed or complied with by it on or before the Closing Date pursuant to this Agreement shall have been performed or complied with in all respects;
(iii) the 15-day advance notice provisions of Section 10(a) of the Certificate (the "Advance Notice") shall have been satisfied by Sellers, or waived by the Company pursuant to the Letter Agreement (defined below);
(iv) there shall not have been any event or occurrence that has or is reasonably likely to have a material adverse effect on the business, operations, assets, properties, prospects or material customer relationships of the Company;
(v) Buyer shall have received an executed letter agreement from the Company, in the form attached hereto as Exhibit A (the "Letter Agreement"), which Letter Agreement shall contain, among other things, the Company's agreement and acknowledgement (the "Recapitalization Agreement") to the effect that for all purposes of the Preferred Stock Recapitalization Agreements, dated June 27, 2002, between the Company and each of Fund VII and Fund VIII (the "Preferred Stock Recapitalization Agreements," together with the Stockholders' Agreement (defined below) and the Registration Rights Agreement (defined below), the "Investor Documents") (i) Buyer is the "Investor" and an "Institutional Investor" (each as defined in the Preferred Stock Recapitalization Agreements) and (ii) Buyer has all of the rights of the "Investor" and an "Institutional Investor" under the Preferred Stock Recapitalization Agreements, including without limitation such time.rights provided in Sections 4, 7.1, 7.2, 7.3, 7.4, 7.5, 10, 11 and 13 thereof;
(vi) Seller shall have caused one of its designees ("Seller Designee") serving as a member of the board of directors of the Company (the "Board") to resign as a member of the Board;
(vii) A majority of the members of the Board, immediately after the resignation of Seller Designee, shall have duly elected David Butters or such othe▇ ▇▇▇▇▇▇▇▇ ▇▇ Buyer as Buyer may determine to serve as a member of the Board in accordance with the certificate of incorporation and by-laws of the Company and such election shall be evidenced by a consent in writing, which consent shall have been delivered to Buyer;
(viii) There has not been any material adverse change Each party to the Stockholders' Agreement, dated June 28, 2002, among the Company, various investors, including Sellers, and certain employees of the Company (the "Stockholders' Agreement"), shall have executed and delivered to Buyer a written consent (the "Stockholders' Consent") in a form satisfactory to Buyer to the effect that such party agrees and acknowledges that for all purposes of the Stockholders' Agreement (i) Buyer is an "Investor" and a member of the "Investor Group" (each as defined in the businessStockholders' Agreement"), operations and financial conditions of Andataco from and after (ii) the date Shares are "Investor Shares" (as defined in the Stockholders' Agreement), (iii) for purposes of the 1998 10calculation required by Section 3 of the Stockholders' Agreement, so long as the Shares are owned beneficially by Buyer or its affiliates, the Shares shall be treated as though they continued to be beneficially owned by the original Investors (as defined in the Stockholders' Agreement) and (iv) Buyer has all of the rights of the "Investor" and a member of the "Investor Group" under the Stockholders' Agreement, including without limitation such rights provided in Sections 2 and 3 thereof; and
(ix) The Company and the holders of two-K until thirds of the Closing DateRegistrable Securities (as defined in the Amended and Restated Preferred Stock Investor Registration Rights Agreement, dated June 28, 2002, among the Company and various investors, including Fund VII and Fund VIII (the "Registration Rights Agreement")), together with the requisite parties to the Company's Amended and Restated Institutional Investor Registration Rights Agreement, dated as of June 27, 2002, and the requisite parties to the Company's Amended and Restated Louis Dryfus Corporation Registration Rights Agreement, dated as of June 27, 2002, shall have executed and delivered to Buyer a written consent (the "Registration Rights Consent") in a form satisfactory to Buyer to the effect that such party agrees and acknowledges that for all purposes of the Registration Rights Agreement (i) Buyer is a "Series B Investor" and a "Preferred Stock Investor" (each as defined in the Registration Rights Agreement), (ii) the Shares are "Registrable Securities" and "Series B Investor Shares" (each as defined in the Registration Rights Agreement) and (iii) Buyer has all of the rights of a "Series B Investor" and "Preferred Stock Investor" under the Registration Rights Agreement, including without limitation such rights provided in Sections 2.1, 2.2, 2.3, 2.4 and 2.5 thereof.
(b) The obligations obligation of ▇▇▇▇▇ Sellers to consummate the transactions purchase and sale of the Shares as contemplated by this Agreement shall be hereby is subject to the fulfillment, at satisfaction on or prior to Closing, of each before the Closing Date of the following conditions precedent (set forth below, any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇)::
(i) nStor no preliminary or permanent injunction or other order of any court or other governmental entity shall have performed all of its obligations and complied with all of its covenants required to be performed in effect or to threatened nor shall there be complied with in effect any statute, rule, regulation or executive order promulgated or enacted by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvalsgovernmental entity that, consents or assignments to be obtained by nStor and necessary for in any such case, prevents the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement; and no suit, action, claim, proceeding or investigation before any governmental entity shall have been commenced or threatened by any person or entity seeking to prevent the sale of the Shares or asserting that the sale of all or a portion of the Shares would be unlawful;
(ii) the representations and warranties of Buyer contained in this Agreement shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as though such representations and warranties had been made or given on and as of the Closing Date; and each and all of the agreements and covenants of Buyer to be performed or complied with by it on or before the Closing Date pursuant to this Agreement shall have been performed or complied with in all respects; and
(iii) the Advance Notice shall have been satisfied by Sellers, or waived by the Company.
Appears in 1 contract
Sources: Stock Purchase Agreement (Lehman Brothers Holdings Inc)
Conditions to Closing. (a) nStor's obligation 3.2.1 The obligations of each of the Company and Subscriber to consummate the transactions contemplated by this Agreement Closing shall be subject to the fulfillmentsatisfaction or valid waiver by the Company, at on the one hand, or prior to ClosingSubscriber, on the other, of each of the following conditions precedent (any or all of which may be waived in writingthat, in whole or in part, by nStor):on the Closing Date:
(i) ▇▇▇▇▇ No suspension of the qualification of the Common Stock for offering or sale or trading in any jurisdiction, or initiation or threatening of any proceedings for any of such purposes, shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Dateoccurred.
(ii) ▇▇▇▇▇ No governmental authority shall have delivered to nStor enacted, issued, promulgated, enforced or entered any judgment, order, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and all approvals, consents has the effect of making consummation of the transactions contemplated hereby illegal or assignments to be obtained by ▇▇▇▇▇ and necessary for the otherwise preventing or prohibiting consummation of the transactions contemplated hereby.
(iii) nStor Each of the Company and its accountants, attorneys Subscriber acknowledge the Common Stock ownership and other representatives issuance limitations set forth in Section 3.1(i) above and agree that in no event shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records such limitations be exceeded by either this Subscription Agreement or as a result of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andatacothe Other Subscription Agreements.
(iv) nStor 3.2.2 The obligation of the Company to consummate the Closing shall have received be subject to the nStor Financing satisfaction or valid waiver by the Company of the additional conditions that, on or prior to the Closing Date.:
(vi) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any All representations and warranties of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ Subscriber contained in this Subscription Agreement shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date (other than those representations and warranties expressly made as if made anew at of an earlier date, which shall be true and correct in all material respects as of such timedate), and consummation of the Closing shall constitute a reaffirmation by Subscriber of each of the representations, warranties and agreements contained in this Subscription Agreement as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all respects as of such date).
(viiiii) There has not been any Subscriber shall have performed or complied in all material adverse change in the business, operations respects with all agreements and financial conditions of Andataco from and after covenants required by this Subscription Agreement.
(iii) Since the date of this Subscription Agreement, no event, the 1998 10-K until the Closing Dateresult of which is a Subscriber Material Adverse Effect, shall have occurred that is continuing.
(b) 3.2.3 The obligations obligation of ▇▇▇▇▇ Subscriber to consummate the transactions contemplated by this Agreement Closing shall be subject to the fulfillmentsatisfaction or valid waiver by Subscriber of the additional conditions that, at or prior to Closingon the Closing Date:
(i) All representations and warranties of the Company contained in this Subscription Agreement shall be true and correct in all material respects as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all material respects as of such date), and consummation of the Closing shall constitute a reaffirmation by the Company of each of the following conditions precedent (any or all representations, warranties and agreements contained in this Subscription Agreement as of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing DateDate (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all respects as of such date).
(ii) nStor The Company shall have delivered to ▇▇▇▇▇ any performed or complied in all material respects with all agreements and all approvals, consents or assignments to be obtained covenants required by nStor and necessary for the consummation of the transactions contemplated herebythis Subscription Agreement.
(iii) There No event, the result of which is a Material Adverse Effect, shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreementoccurred that is continuing.
Appears in 1 contract
Sources: Subscription Agreement (PureCycle Technologies, Inc.)
Conditions to Closing. (a) nStor's obligation The obligations of each of the Standby Purchasers to consummate the transactions contemplated by this Agreement shall be hereunder are subject to the fulfillment, at or prior to Closingor on the Closing Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions:
(i) ▇▇▇▇▇ shall have performed all The representations and warranties of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement 3 shall be true and correct both at in all material respects as of the date on which this Agreement is signed hereof and at and as of the Closing Date as if made anew at on such date (except for representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such time.specified date);
(viiiii) There has not been any material adverse change in Subsequent to the business, operations execution and financial conditions delivery of Andataco from this Agreement and after the date of the 1998 10-K until prior to the Closing Date, there shall not have been any Material Adverse Effect that is continuing; and
(iii) As of the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or The NASDAQ Global Market or trading in securities generally on the New York Stock Exchange or The NASDAQ Global Market shall not have been suspended or limited or minimum prices shall not have been established on either exchange (a “Market Adverse Effect).
(b) The obligations of ▇▇▇▇▇ the Company to consummate the transactions contemplated by this Agreement shall be hereunder are subject to the fulfillment, at or prior to Closingor on the Closing Date, of the condition that the representations and warranties of each of the Standby Purchasers in Section 4 shall be true and correct in all material respects as of the date hereof and at and as of the Closing Date as if made as of such date (except for representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such specified date) and the Standby Purchaser has entered into a lock-up agreement with the Company in the form attached hereto as Exhibit A.
(c) The obligations of the Company and each of the Standby Purchasers to consummate the transactions contemplated hereunder in connection with the Rights Offering are subject to the fulfillment, prior to or on the Closing Date, of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):conditions:
(i) nStor No judgment, injunction, decree or other legal restraint shall prohibit, or have performed all the effect of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvalsrendering unachievable, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor Rights Offering or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the material transactions contemplated by this Agreement;
(ii) No stop order suspending the effectiveness of the Rights Offering Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or otherwise shall have been complied with;
(iii) The New Shares and the Securities shall have been authorized for listing on The NASDAQ Global Market; and
(iv) The Standby Purchaser and the Company shall be reasonably satisfied that the purchase and ownership of New Shares and the other transactions contemplated hereby will not result in the Standby Purchaser being deemed to “control” the Company within the meaning of the Bank Holding Company Act of 1956 or the Change in Bank Control Act, provided that the Standby Purchaser provides customary “non-control” commitments to the Board of Governors of the Federal Reserve System and any applicable regulatory waiting period shall have expired or been terminated thereunder with respect to such purchase.
Appears in 1 contract
Sources: Standby Purchase Agreement (Community Capital Corp /Sc/)
Conditions to Closing. (a) nStor's 5.1. Conditions to Investor’s Obligations at the Closing. The Investor’s obligations to effect the Closing, including, without limitation, its obligation to consummate purchase Shares and Warrant at the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, are conditioned upon the fulfillment (or waiver by the Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use its commercially reasonable efforts to cause each of such conditions precedent to be satisfied:
(a) the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct as of such date as if made on such date (except to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct as of that particular date);
(b) the Company shall have complied with or performed all of which the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by the Company on or before the Closing;
(c) the Company shall have delivered to the Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in Sections 5.1(a), (b), (h), (i), (k) and (l) have been fulfilled as of the Closing, it being understood that the Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
(d) the Company shall have delivered to the Investor duly executed certificates representing the Shares and the Warrant being purchased by the Investor;
(e) the Company shall have executed and delivered to the Investor the Registration Rights Agreement;
(f) the Company shall have executed and delivered to the Investor the Business Collaboration Agreement and the Business Collaboration Agreement shall be waived in writingeffective and shall not be terminated;
(g) the Company shall have delivered to the Investor a certificate, in whole signed by the Secretary or in partan Assistant Secretary of the Company, attaching (i) the charter and bylaws of the Company, and (ii) resolutions passed by nStor):its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that the Investor may rely on such certificate as a representation and warranty of the Company made herein;
(h) the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon exercise of the Warrant to be issued at the Closing (such number to be determined without regard to any restriction on such exercise);
(i) ▇▇▇▇▇ there shall have performed all be no injunction, restraining order or decree of the obligations and complied with all any nature of the covenants required to be performed any court or to be complied with by them under this Agreement on Governmental Authority of competent jurisdiction that is in effect that restrains or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for prohibits the consummation of the transactions contemplated hereby.hereby and by the other Transaction Documents;
(iiij) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.shall occur on a date that is not later than July 3, 2009;
(viiik) There has not been any there shall have occurred no material adverse change in the business, operations and Company’s consolidated business or financial conditions of Andataco from and after condition since the date of the 1998 10-K until Company’s most recent financial statements contained in the Closing Date.Disclosure Documents; and
(bl) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement Common Stock shall be subject to listed on the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing DateNasdaq Global Market.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions to Closing. (a) nStor's obligation The obligations of the Standby Purchaser to consummate the transactions contemplated by this Agreement shall be hereunder are subject to the fulfillment, at or prior to Closingor on the Closing Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions:
(i) ▇▇▇▇▇ shall have performed all The representations and warranties of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement 4 shall be true and correct both at in all material respects as of the date on which this Agreement is signed hereof and at and as of the Closing Date as if made anew at on such date (except for representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such time.specified date);
(viiiii) There has not been any material adverse change in Subsequent to the business, operations execution and financial conditions delivery of Andataco from this Agreement and after the date of the 1998 10-K until prior to the Closing Date, there shall not have been any Material Adverse Effect and no event shall have occurred or circumstance shall exist which would reasonably likely result in a Material Adverse Effect; and
(iii) As of the Closing Date, none of the following events shall have occurred and be continuing: (A) trading in the Common Stock shall have been suspended by the Commission or (B) a banking moratorium shall have been declared either by U.S. federal or New York State authorities (collectively, a “Market Adverse Effect”).
(b) The obligations of ▇▇▇▇▇ the Company to consummate the transactions contemplated by this Agreement shall be hereunder are subject to the fulfillment, at or prior to Closingor on the Closing Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):conditions:
(i) nStor The representations and warranties of the Standby Purchaser in Section 5 shall have performed be true and correct in all material respects as of its obligations the date hereof and complied with all at and as of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.Date as if made as of such date (except for representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such specified date); and
(ii) nStor The Standby Purchaser shall have executed and delivered to ▇▇▇▇▇ any the Company a duly executed copy of this Agreement.
(c) The obligations of the Company and all approvalsthe Standby Purchaser to consummate the transactions contemplated hereunder in connection with the Rights Offering are subject to the fulfillment, consents prior to or assignments to be obtained by nStor and necessary for on the Closing Date, of the following conditions:
(i) No judgment, injunction, decree or other legal restraint shall prohibit, or have the effect of rendering unachievable, the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending Rights Offering or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement; or
(ii) The Rights Offering Registration Statement shall have been filed with the Commission and declared effective; no stop order suspending the effectiveness of the Rights Offering Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or otherwise shall have been complied with.
Appears in 1 contract
Conditions to Closing. (a) nStor's obligation The obligations of Buyer and Seller to consummate the transactions contemplated by this Agreement shall be Closing are subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions:
(i) ▇▇▇▇▇ any applicable waiting period under the HSR Act with respect to the transactions contemplated hereby shall have performed all of the obligations and complied with all of the covenants required to be performed expired or to be complied with by them under this Agreement on or prior to the Closing Date.been terminated; and
(ii) ▇▇▇▇▇ there shall have delivered to nStor not be in force an injunction or order of any and all approvalscourt of competent jurisdiction, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for any Applicable Law adopted after the date hereof, in the United States enjoining, prohibiting or rendering illegal the consummation of the transactions contemplated hereby.
(b) The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions (any or all of which may be waived by Buyer in whole or in part to the extent permitted by Applicable Law):
(i) (A) the Fundamental Warranties of the Companies and Seller contained in this Agreement, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all material respects as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, (B) the representations and warranties of the Companies, other than the Fundamental Warranties, contained in this Agreement, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except, in each case, for any inaccuracy or omission that would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect; (C) the representations and warranties of Seller, other than the Fundamental Warranties, contained in this Agreement, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except, in each case, for any inaccuracy or omission that would not reasonably be expected, individually or in the aggregate, to materially impair Seller’s ability to perform or comply with its obligations under this Agreement or consummate the transactions contemplated hereby;
(ii) the covenants of the Companies and Seller to be performed prior to the Closing shall have been performed (or any non-performance shall have been cured) in all material respects;
(iii) nStor and its accountantssince the date of this Agreement, attorneys and other representatives there shall not have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.occurred a Material Adverse Effect; and
(iv) nStor Buyer shall have received the nStor Financing on or prior a certificate signed by an executive officer of Seller to the Closing Dateeffect of the foregoing clauses (i), (ii) and (iii).
(vc) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or The obligation of Seller to consummate the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking Closing is subject to restrain or prohibit any the satisfaction of the transactions contemplated following further conditions (any or all of which may be waived by this Agreement.Seller in whole or in part to the extent permitted by Applicable Law):
(vii) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a(A) hereof.
(vii) Each representation and warranty the Fundamental Warranties of ▇▇▇▇▇ Buyer contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date Date, as if made anew at and as of such timedate, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, and (B) the representations and warranties of Buyer, other than Fundamental Warranties, contained in this Agreement shall be true and correct as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except any inaccuracy or omission that would not reasonably be expected, individually or in the aggregate, to materially impair Buyer’s ability to perform or comply with its obligations under this Agreement or consummate the transactions contemplated hereby;
(ii) the covenants of Buyer to be performed prior to the Closing shall have been performed (or any non-performance shall have been cured) in all material respects; and
(iii) Seller shall have received a certificate signed by an executive officer of Buyer to the effect of the foregoing clauses (i) and (ii).
(viiid) There has not All conditions to the Closing shall be deemed to have been any material adverse change in the business, operations and financial conditions of Andataco satisfied or waived from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been institutedClosing. Neither Seller nor Buyer may rely on the failure of any condition set forth in this Article 9 to be satisfied if such failure was caused by the failure of Seller, pending on the one hand, or threatened against AndatacoBuyer, ▇▇▇▇▇on the other hand, nStor or the Company any suitrespectively, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by comply with its obligations under this Agreement.
Appears in 1 contract
Conditions to Closing. (a) nStor's The obligation of Live Nation to consummate the transactions transaction contemplated by this Agreement shall be subject to the fulfillmentsatisfaction (or waiver by Live Nation), at or prior to the Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions:
(i) ▇▇▇▇▇ shall have performed all The representations and warranties of the obligations Purchasers contained in this Agreement and complied with to be contained in the Assignments attached hereto as Exhibits ▇-▇, ▇-▇, ▇-▇ and A-4 shall be true and correct in all material respects as of the covenants required to be performed or to be complied with by them under this Agreement on or prior to Closing Date, in each case as if made as of the Closing Date.
(ii) ▇▇▇▇▇ The covenants and agreements contained in this Agreement to be complied with by the Purchasers at or before the Closing shall have delivered to nStor any and been complied with in all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated herebymaterial respects.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor Live Nation shall have received a certificate from each of the nStor Financing on or prior to Purchasers signed by an executive officer of such Purchaser confirming that the Closing Date.
conditions described in Section 6(a)(i) and (vii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking satisfied with respect to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing DatePurchaser.
(b) The obligations obligation of ▇▇▇▇▇ the Purchasers to consummate the transactions transaction contemplated by this Agreement shall be subject to the fulfillmentsatisfaction (or waiver by the Purchasers), at or prior to the Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):conditions:
(i) nStor shall have performed all The representations and warranties of its obligations Live Nation and complied with all of its covenants required the LN Target Companies contained in this Agreement and to be performed or to contained in Exhibits ▇-▇, ▇-▇, ▇-▇ and A-4 shall be complied with by it under this Agreement on or prior to true and correct in all material respects as of the Closing Date, in each case as if made as of the Closing Date.
(ii) nStor The covenants and agreements contained in this Agreement to be complied with by Live Nation at or before the Closing shall have delivered to ▇▇▇▇▇ any and been complied with in all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated herebymaterial respects.
(iii) There The Purchasers shall not have received a certificate from Live Nation signed by an executive officer thereof confirming that the conditions described in Section 6(b)(i) and (ii) have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreementsatisfied.
Appears in 1 contract
Conditions to Closing. (a) nStor's 5.1. Conditions to each Investor’s Obligations at the Closing. Each Investor’s obligations to effect the Closing, including without limitation its obligation to consummate purchase Shares at the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions precedent to be satisfied:
a. the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct as of such date as if made on such date (except that to the extent that any such representation or all warranty relates to a particular date, such representation or warranty shall be true and correct as of which may be waived in writing, in whole or in part, by nStor):that particular date);
(i) ▇▇▇▇▇ b. the Company shall have complied with or performed all of the agreements, obligations and complied with all of the covenants conditions set forth in this Agreement that are required to be performed or to be complied with or performed by them under this Agreement the Company on or prior to before the Closing Date.Closing;
(ii) ▇▇▇▇▇ c. the Company shall have delivered to nStor each Investor duly executed certificates representing the Shares being purchased by such Investor, unless the Shares are issued in uncertificated form;
d. the Company shall have delivered to each Investor a secretary’s certificate, dated as of the Closing Date, certifying as to (A) the incorporation and active status of the Company in the State of Delaware based upon a certificate issued by the Secretary of State of the State of Delaware as of a date within ten (10) days of the Closing Date, (B) the resolutions of the Board of Directors approving the transactions contemplated hereby, (C) the Restated Certificate of Incorporation of the Company, as amended to date, certified as of a date within ten (10) days of the Closing Date, and (D) the By-Laws of the Company, each as in effect as of the Closing Date;
e. Counsel to the Company shall have delivered to the Investors a legal opinion substantially in the form attached hereto as Exhibit B;
f. there shall be no injunction, restraining order or decree of any and all approvals, consents nature of any court or assignments to be obtained by ▇▇▇▇▇ and necessary for Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby.hereby and by the other Transaction Documents;
(iii) nStor and its accountants, attorneys and other representatives g. the Company shall have had full executed each Transaction Document to which it is a party and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered the same to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated herebyInvestor; and
h. no Material Adverse Effect shall have occurred.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions to Closing. (a) nStor's obligation 3.1 Conditions Precedent to consummate Obligations of the Seller Parties and Purchaser. The respective obligations of each Party to effect the transactions contemplated by this Agreement shall be subject to the fulfillment, satisfaction or waiver at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.of the following conditions precedent:
(iia) ▇▇▇▇▇ The Bankruptcy Court shall have delivered entered the Bidding Procedures Order and such order shall be a Final Order;
(b) The Bankruptcy Court shall have entered the Sale Order and such order shall be a Final Order;
(c) Any waiting periods (and any extensions thereof) applicable to nStor any this Agreement and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.hereby under the HSR Act shall have expired or been terminated;
(iiid) nStor and its accountantsno action, attorneys and suit or Proceeding (including any Proceeding over which the Bankruptcy Court or any other representatives court that has jurisdiction) shall have had full and complete access during normal business hours be pending by any Governmental Body to all officesenjoin, facilitiesrestrain, properties, assets, books, agreements, files and records prohibit or obtain substantial damages or significant equitable relief in respect of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior related to the Closing Date.
(v) There shall not have been institutedtransactions contemplated by this Agreement, pending or threatened against Andataco, ▇▇▇▇▇, nStor that would be reasonably expected to prevent or make illegal the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any consummation of the transactions contemplated by this Agreement.; and
(vie) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There there shall not have been institutedbe in effect any Law of any Governmental Body of competent jurisdiction restraining, pending enjoining or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any otherwise preventing consummation of the transactions contemplated by this Agreement. If the Closing occurs, all closing conditions set forth in this Section 3.1 which have not been fully satisfied as of the Closing shall be deemed to have been fully waived by the Seller Parties and Purchaser.
Appears in 1 contract
Sources: Purchase Agreement (Nco Group Inc)
Conditions to Closing. (aI) nStorUbi Soft's obligation to consummate the transactions contemplated by this Agreement shall be is expressly subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any compliance with which or all the occurrence of which may be waived in writing, in whole or in part, part by nStorUbi Soft):
(i) ▇▇▇▇▇ 1. Ubi soft shall have performed all completed its due diligence and legal audit of the obligations Assigned Contracts and complied with all such due diligence and legal audit shall be satisfactory to Ubi Soft 2. The absence of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking event to restrain or prohibit any prohibit, or to obtain damages or a discovery order in respect of, this Agreement or the consummation of the transactions contemplated by this Agreement.
(vi) ▇3. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each All representation and warranty warranties of ▇▇▇▇▇ contained in this Agreement IMagic shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date as if made anew at Date. 4. IMagic shall have complied with and as of such time.
(viii) There has not been any duly performed in all material adverse change in the business, operations respects all agreements and financial conditions of Andataco from on its part to be complied with and after the date of the 1998 10-K until performed pursuant to this Agreement on or before the Closing Date.. 5. Written approval of third party developers , in the form attached hereto Exhibit D, on the assignment of the Assigned Contracts entered with such developers listed on Exhibit E.
(b) The obligations 6. Execution of ▇▇▇▇▇ a license agreement, mutually satisfactory to consummate Ubi Soft and IMagic, granting IMagic online rights with respect to the games produced under the Assigned Contracts 7. Approval of this Agreement and the transactions contemplated hereby by Ubi Soft's Board of Directors
(II) IMagic's obligation to consummate this Agreement shall be is expressly subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any compliance with which or all the occurrence of which may be waived in writing, in whole or in part, part by ▇▇▇▇▇):
(i) nStor shall have performed all IMagic): 1 The absence of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking event to restrain or prohibit any prohibit, or to obtain damages or a discovery order in respect of, this Agreement or the consummation of the transactions contemplated by this Agreement. 2 All representation and warranties of Ubi Soft shall be true and correct in all material respects as of the Closing Date. 3 Ubi Soft shall have complied with and duly performed in all material respects all agreements and conditions on its part to be complied with and performed pursuant to this Agreement on or before the Closing Date 4 Execution of a license agreement, mutually satisfactory to Ubi Soft and IMagic, granting IMagic online rights with respect to the games produced under the Assigned Contracts.
Appears in 1 contract
Sources: Agreement Regarding Assignment of Contracts (Interactive Magic Inc /Nc/)
Conditions to Closing. (a) nStor's obligation The obligations of each of the Purchaser and the Partnership to consummate purchase and sell, respectively, the transactions contemplated by this Agreement Purchased Units shall be subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any or all of which may be waived by a particular party on behalf of itself in writing, in whole or in part, to the extent permitted by nStor):applicable law), as of the Closing Date:
(i) ▇▇▇▇▇ No statute, rule, order, decree or regulation shall have performed all been enacted or promulgated, and no action shall have been taken, by any governmental authority which temporarily, preliminarily or permanently restrains, precludes, enjoins or otherwise prohibits or seeks to prohibit the consummation of the obligations sale and complied with all purchase of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.Purchased Units;
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, be pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private third party or that is not a governmental agencyauthority which seeks to restrain, commissionpreclude, bureau or body seeking to restrain enjoin or prohibit any the purchase and sale of the transactions contemplated by this Agreement.Purchased Units and, in each case, has a reasonable probability of success on the merits; and
(viiii) ▇. ▇▇▇▇▇ The “Initial Funding” under the Unit Purchase Agreement shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall occurred or be true and correct both at the date occurring simultaneously on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ the Purchaser to consummate purchase the transactions contemplated by this Agreement Purchased Units shall be subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any or all of which may be waived by the Purchaser in writing, in whole or in part, to the extent permitted by ▇▇▇▇▇):applicable law), as of the Closing Date:
(i) nStor The representations and warranties of the Partnership contained in this Agreement (other than Section 1(e)(iii)(B)) shall be true and correct as of the Closing Date as if made on the Closing Date (other than the representations and warranties as of a specified date, which shall be true and correct on and as of such date) without giving effect to any limitation as to materiality or CQP Material Adverse Effect set forth therein, except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a CQP Material Adverse Effect;
(ii) The Partnership shall have performed in all material respects all of its obligations and complied with all of its the covenants required to be performed by it hereunder prior to the Closing Date;
(iii) The Amended Partnership Agreement shall have been duly executed by the General Partner and shall be in full force and effect; and
(iv) The Registration Rights Agreement shall have been duly executed by the Partnership and shall be in full force and effect.
(c) The obligations of the Partnership to sell the Purchased Units shall be subject to the satisfaction of the following conditions (any or all of which may be waived by the Seller in writing, in whole or in part, to the extent permitted by applicable law), as of the Closing Date:
(i) All of the representations and warranties of the Purchaser contained in this Agreement shall be true and correct as of the Closing Date as if made on the Closing Date (other than the representations and warranties as of a specified date, which shall be true and correct on and as of such date) without giving effect to any limitation as to materiality set forth therein, except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to cause, a delay in the Closing Date or impair the Purchaser's ability to perform its obligations under this Agreement; and
(ii) The Purchaser shall have performed in all material respects all of the covenants required to be complied with performed by it under this Agreement on or hereunder prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Class B Unit Purchase Agreement (Cheniere Energy Partners, L.P.)
Conditions to Closing. (a) nStor's obligation The obligations of Buyer and Seller to consummate the transactions contemplated by this Agreement shall be Closing are subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any or all of which may be waived in writingby Buyer and Seller, together, in whole or in part, part to the extent permitted by nStorApplicable Law):
(i) ▇▇▇▇▇ (A) any applicable waiting period under the HSR Act with respect to the transactions contemplated hereby shall have performed all expired or been terminated and (B) any applicable consents, filings or approvals under the other Antitrust Laws and the Investment Screening Laws set forth on Section 8.01(a)(i) of the obligations and complied with all of the covenants required to be performed Seller Disclosure Schedule shall have been obtained or to be complied with by them under this Agreement on made or prior to the Closing Date.any applicable waiting period thereunder shall have expired or been terminated; and
(ii) ▇▇▇▇▇ there shall not be in force any Applicable Law (other than Antitrust Laws or Investment Screening Laws) or an injunction or order of any court of competent jurisdiction in any jurisdiction in which Seller, Buyer or any of their respective Affiliates have delivered to nStor any and all approvalsmaterial operations or assets enjoining, consents prohibiting or assignments to be obtained by ▇▇▇▇▇ and necessary for rendering illegal the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing DateClosing.
(b) The obligations obligation of ▇▇▇▇▇ Buyer to consummate the transactions contemplated by this Agreement shall be Closing is subject to the fulfillment, at or prior to Closing, of each satisfaction of the following further conditions precedent (any or all of which may be waived in writing, by Buyer in whole or in part, part to the extent permitted by ▇▇▇▇▇Applicable Law):
(i) nStor (A) The representations and warranties of Seller contained in Sections 3.01 (but solely in the first sentence thereof), 3.03, 3.06 and 3.25, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all material respects as of the date hereof and as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such earlier date, (B)the representations and warranties of Seller contained in Sections 3.02 (but solely in the second sentence thereof) and 3.08 shall be true and correct in all but de minimis respects as of the Closing Date, as if made at and as of such date, (C) the representation and warranty of Seller contained in the first sentence of Section 3.09 shall be true and correct in all respects as of the date hereof and as of the Closing Date, as if made at and as of such date, and (D) the other representations and warranties of Seller contained in this Agreement, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the date hereof and as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date, except, in each case, for any inaccuracy or omission that would not reasonably be expected to, individually or in the aggregate, have performed all a Material Adverse Effect;
(ii) the covenants of its obligations and complied with all of its covenants required Seller to be performed or to be complied with by it under this Agreement on or prior to the Closing shall have been performed in all material respects;
(iii) the Pre-Closing Restructuring shall have been consummated in accordance with the terms and conditions of this Agreement; and
(iv) Buyer shall have received a certificate signed by an executive officer of Seller to the effect of the foregoing clauses (i), (ii) and (iii).
(c) The obligation of Seller to consummate the Closing is subject to the satisfaction of the following further conditions (any or all of which may be waived by Seller in whole or in part to the extent permitted by Applicable Law):
(A) the representations and warranties of Buyer contained in Sections 4.01, 4.02, 4.07 and 4.08, disregarding all qualifications contained therein relating to materiality or material adverse effect, shall be true and correct in all material respects as of the date hereof and as of the Closing Date., as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such earlier date, and (B) the other representations and warranties of Buyer contained in this Agreement shall, disregarding all qualifications contained therein relating to materiality or material adverse effect, shall be true and correct as of the date hereof and as of the Closing Date, as if made at and as of such date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date, except any inaccuracy or omission that would not reasonably be expected to, individually or in the aggregate, materially impair Buyer’s ability to perform or comply with its obligations under this Agreement or consummate the transactions contemplated hereby;
(ii) nStor the covenants of Buyer to be performed prior to the Closing shall have delivered to ▇▇▇▇▇ any and been performed in all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.material respects;
(iii) There Seller shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or received a certificate signed by an executive officer of Buyer to the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any effect of the transactions contemplated foregoing clauses (i) and (ii); and
(iv) Seller shall have received the Amended and Restated Limited Partnership Agreement, duly endorsed or executed, as applicable, by this Agreementthe parties thereto other than Seller, and, concurrently with the Closing, evidence of the issuance of the Class C Partnership Interests in the form of an exhibit to the Amended and Restated Limited Partnership Agreement listing Seller as a partner and holder of such Class C Partnership Interests.
Appears in 1 contract
Conditions to Closing. (a) nStor's The City‟s obligation to consummate proceed with the transactions contemplated by this Agreement shall be Closing is subject to the fulfillment, at or prior to Closing, Applicant‟s fulfillment of each of the following conditions precedent (any at or all prior to the Closing:
a. All representations and warranties of which may the Applicant shall be waived in writing, in whole or in part, by nStor):true as of the Closing.
b. The Applicant shall have delivered to the City:
(i1) Evidence of Good Standing of the Applicant from the Nebraska Secretary of State.
(2) A copy of the current and correct Certificate of Organization and Operating Agreement of the Applicant certified by the members (the “Members”) to be correct;
(3) Certified resolutions of the Members authorizing this Agreement and providing for signature authority.
c. In order to secure the Loan and the Repayment, the Applicant shall have delivered to the City the following:
(1) A guaranty (the “Guaranty”) of the ▇▇▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or ▇▇. The Guaranty shall be in the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any form of the transactions contemplated by this Agreementattached “Exhibit B”.
(vi2) ▇A Security Agreement covering the Applicant‟s equipment. ▇▇▇▇▇ The Security Agreement shall have entered into Employment be in the form of the attached “Exhibit C”. The Security Agreement as provided for shall be second in Section 3(a) hereofpriority to a lien held by Platte Valley Bank.
(vii) Each representation d. The Applicant shall in all material respects have performed its obligations, agreements, and warranty of ▇▇▇▇▇ covenants contained in this Agreement shall to be true and correct both at performed by them, on, or before the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such timeClosing.
(viii) e. There has not shall have been any no material adverse change in the business, operations and operation or financial conditions of Andataco from and after the date status of the 1998 10-K until Applicant and the Closing Dateshall constitute the Applicant‟s representations that there has been no such material adverse change.
(b) The obligations of ▇▇▇▇▇ to consummate f. In requesting the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each disbursement of the following Loan, the Applicant is considered to have represented that the above conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations been satisfied and complied with all of its covenants required are continuing to be performed or to be complied with by it under this Agreement on or prior to the Closing Datesatisfied.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions to Closing. (a) nStor's The obligation of the Holder hereunder to consummate the transactions contemplated by this Agreement shall be hereby at the Closing is subject to the fulfillmentsatisfaction, at or prior to Closingbefore the Closing Date, of each of the following conditions, provided that these conditions precedent (any or all of which are for the Holder’s sole benefit and may be waived by the Holder at any time in writing, in whole or in part, its sole discretion by nStor):providing the Company with prior written notice thereof:
(i) ▇▇▇▇▇ The Company shall have performed all of submitted an additional share listing application for the obligations and complied Exchange Shares with all of the covenants required to be performed or to be complied with by them under this Agreement NASDAQ on or prior to the Closing Date.Date and shall cause the Exchange Shares to be approved by the NASDAQ for listing on the Closing Date or as soon as practicable thereafter;
(ii) ▇▇▇▇▇ The Company shall have delivered to nStor any received all necessary approvals from shareholders, exchanges, and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.regulatory bodies; and
(iii) nStor The representations and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records warranties of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date in all material respects on which this Agreement is signed and at and as of the Closing Date with the same effect as if made anew on the Closing Date and the Company shall have complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until or prior to the Closing Date.;
(b) The obligations obligation of ▇▇▇▇▇ the Company hereunder to consummate the transactions contemplated by this Agreement shall be hereby at the Closing is subject to the fulfillmentsatisfaction, at or prior to Closingbefore the Closing Date, of each of the following conditions, provided that these conditions precedent (any or all of which are for the Company’s sole benefit and may be waived by the Company at any time in writing, in whole or in part, its sole discretion by ▇▇▇▇▇):providing the Holder with prior written notice thereof:
(i) nStor The representations and warranties of the Holder 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 the Holder shall have performed complied in all of its obligations and complied material respects with all of the agreements and satisfied all the conditions on its covenants required part to be performed or to be complied with by it under this Agreement on satisfied at or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions to Closing. (a) nStor's obligation The obligations of the Company and the Standby Purchaser to consummate the transactions contemplated hereunder in connection with the Standby Offering are subject to the fulfillment, prior to or on the Closing Date, of the following conditions:
(i) the Rights Offering shall have been consummated at the Subscription Price;
(ii) no judgment, injunction, decree, regulatory proceeding or other legal restraint shall prohibit, or have the effect of rendering unachievable, the consummation of the Standby Offering or the material transactions contemplated by this Agreement; and
(iii) all required approvals and consents that are required in connection with the consummation of the transactions contemplated by this Agreement shall have been duly obtained and shall be effective.
(b) The obligations of the Standby Purchaser to consummate the transactions contemplated hereunder in connection with the Standby Offering are subject to the fulfillment, at or prior to Closingor on the Closing Date, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions:
(i) ▇▇▇▇▇ shall have performed all the representations and warranties of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement 2 shall be true and correct both at in all material respects as of the date on which this Agreement is signed and at hereof and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in date and the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor Company shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.hereunder;
(ii) nStor there shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.been no Material Adverse Change;
(iii) There there shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or no Market Adverse Change; and
(iv) the Company shall have obtained any suitrequired federal, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking state and regulatory approvals for the Stock Offering on conditions reasonably satisfactory to restrain or prohibit any the Company.
(c) The obligations of the Company to consummate the transactions contemplated by this Agreement.hereunder in connection with the Standby Offering are subject to the fulfillment, prior to or on the Closing Date, of the following condition:
(i) that the representations and warranties of the Standby Purchaser in Section 3 shall be true and correct in all material respects as of the date hereof and as of the Closing Date as if made as of such date and the Standby Purchaser shall have performed all of its obligations hereunder; and
Appears in 1 contract
Conditions to Closing. (a) nStor's Section 7.01. The obligation of Provo to consummate effect the transactions contemplated by this Agreement sale of the Provo Mexico Shares shall be subject to the fulfillment, fulfillment at or prior to Closing, of each the Closing Date of the following conditions precedent (requirements, any or all of which may be waived in writingwriting by Provo in its sole discretion:
(a) The representations and warranties of Buyers contained in this Agreement and any other document delivered by it in accordance with the terms of this Agreement shall have been true when made and, in whole or addition, shall be true in part, by nStor):all material respects on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date.
(ib) ▇▇▇▇▇ Each of the parties shall have performed executed and delivered all of the obligations Transaction Documents to which they are parties, including the Reseller Agreement in substantially the form annexed hereto as Exhibit A.
(c) The Buyers shall have performed, observed and complied in all material respects with all of the its obligations, covenants and agreements, and shall have satisfied or fulfilled in all material respects all conditions contained in any document referenced herein and required to be performed performed, observed or complied with, or to be complied with satisfied or fulfilled by them under this Agreement on the Buyers at or prior to the Closing Date.
(iid) Provo shall have executed the Callisto Agreement.
(e) Provo shall have received approval of this Agreement and the transactions contemplated hereby from a majority of its shareholders, which majority shall include the persons named on SCHEDULE 7.01(E) attended hereto.
(f) Provo shall have filed the Information Statement with the SEC, the SEC shall have deemed the Information Statement effective, Provo shall have mailed the Information Statement and any required accompanying materials to all shareholders of record, and twenty (20) days shall have elapsed from the date of mailing.
(g) Provo shall have received an irrevocable written consent executed by the Buyers in the form annexed hereto as Exhibit B (the "Shareholder Written Consent").
(h) Provo shall have received an updated fairness opinion from Beckett Race Securities, concludi▇▇ ▇▇▇▇▇ t the transaction contemplated by this Agreement is fair to Provo's shareholders from a financial point of view.
(i) No order of any court or administrative agency shall have delivered to nStor any and all approvals, consents be in effect which constrains or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of prohibits the transactions contemplated hereby, and no claim, suit, action, inquiry, investigation or proceeding in which it will be, or it is, sought to restrain, prohibit, or change the terms of or obtain damages or other relief in connection with this Agreement or any other transactions contemplated hereby, shall have been instituted or threatened by any person or entity, in which in the reasonable judgment of Provo (based on the likelihood of success and material consequences of such claim, suit, action, inquiry or proceeding) makes it inadvisable to proceed with the consummation of such transactions.
(iiij) nStor All filings with, and its accountantsconsents, attorneys waivers, approvals, licenses and other representatives authorizations by, third parties and governmental and administrative authorities (and all amendments or modifications to existing agreements with third parties) (the "Consents") required as a pre-condition to the performance by the parties of their obligations hereunder and under any agreement delivered pursuant hereto, shall have had been duly made or obtained and shall be in full force and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andatacoeffect.
(ivk) nStor The validity of all transactions contemplated by all of the Transaction Documents, as well as the form and substance of all agreements, instruments, opinions, certificates and other documents delivered by Provo Mexico pursuant hereto, shall have received the nStor Financing on or prior be satisfactory in all material respects to the Closing DateProvo and its counsel.
(vl) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the The transactions contemplated by this Agreementhereby can be effected on a tax-free basis for Provo.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions to Closing. The obligation of each party to this Agreement to effect the Closing shall be subject to the fulfillment by the other party of the following additional conditions or the waiver of the fulfillment of such conditions by the party entitled to benefit therefrom:
(ai) nStor's obligation the other party shall have performed in all material respects the covenants and obligations required to consummate be performed under this Agreement at or prior to the Closing;
(ii) the waiting period (and any extensions thereof) applicable to the consummation of the transactions contemplated by this Agreement shall be subject to and by the fulfillment, at or prior to Closing, of each of USS Stock Purchase Agreement under the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ HSR Act shall have performed all of the obligations and complied with all of the covenants required to be performed expired or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.been terminated;
(iii) nStor the First Closing under, and its accountantsas defined in, attorneys and other representatives the USS Stock Purchase Agreement shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.occurred;
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any representations and warranties of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ other party contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and in all material respects at and as of the Closing Date as if made anew at on and as of such time.date (except to the extent any such representation and warranty by its terms relates to a prior date);
(v) the Seller shall have performed in all respects all obligations and agreements, and complied in all respects with all covenants, contained in this Agreement, to be performed and complied with by it at or prior to the Closing;
(vi) the Seller and the Purchasers shall have executed the Escrow Agreement in the form attached hereto as Exhibit A, the Stockholders Agreement, the Right of First Refusal Agreement;
(vii) a letter in the form attached hereto as Exhibit B, addressed to U.S. Trust Company of California, N.A. and dated as of September 7, 2000, shall have been executed by the Seller, U.S. Trust Company of California, N.A. and certain other parties identified therein;
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇ ▇▇▇▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇ & ▇▇▇▇▇▇ any LLP shall have delivered to the Purchasers two (2) opinions, one of which shall be dated as of the First Closing and the other dated as of the Closing, addressed to the Purchasers in form and substance satisfactory to the Purchasers;
(ix) all approvalsgovernmental, regulatory and third-party consents or assignments to be obtained by nStor and clearances necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any all of the transactions contemplated by the Documents to which Seller is a party shall have been obtained and shall be in full force and effect; and
(x) the Seller shall have provided each Purchaser with a copy of a resolution duly adopted by the Board of Directors of Seller, certified as such by the Seller's Secretary, authorizing the execution of this AgreementAgreement and any other agreements arising in connection herewith and the Closing hereunder. The Closing shall occur no later than two (2) business days following the satisfaction of the foregoing conditions unless the parties hereto shall agree that the Closing shall occur at another time.
Appears in 1 contract
Sources: Stock Purchase Agreement (Pequot Capital Management Inc/Ct/)
Conditions to Closing. (a) nStor's obligation Purchaser’s obligations to consummate the transactions contemplated by this Agreement shall be subject Closing and to purchase the fulfillment, at or prior to Closing, Property hereunder are conditioned upon satisfaction of each all of the following conditions precedent (conditions, any or all of which may be waived by Purchaser in writing, in whole or in part, by nStor):its sole discretion:
(i1) ▇▇▇▇▇ shall have performed all The performance by Seller of the obligations its material covenants, undertakings, and complied with all of the covenants required agreements to be performed or to be complied with by them under it hereunder and the truth of the material representations and warranties made in this Agreement on or prior by Seller at the time as of which the same were made to Purchaser and as of the Closing DateClosing.
(ii2) ▇▇▇▇▇ As of the Closing there shall have delivered not be any of the following by or against or with respect to nStor Seller: (A) a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any and all approvals, consents other applicable federal or assignments to be obtained by ▇▇▇▇▇ and necessary state bankruptcy law or other similar law; (B) the appointment of a trustee or receiver of any property interest; or (C) an assignment for the consummation benefit of the transactions contemplated herebycreditors.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v3) There shall not have been instituted, pending be as of the Closing any taking or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any taking of the transactions contemplated Property or any part thereof by this Agreementeminent domain.
(vi4) ▇. ▇▇▇▇▇ The original Tenant Estoppel Certificates for each Tenant shall have entered into Employment been delivered to Purchaser.
(5) The Title Company shall be irrevocably committed to issue to Purchaser, upon payment of applicable premiums and fees, the Title Policy. If any of such conditions have not been satisfied at the Closing, then Purchaser may terminate this Agreement by giving immediate written notice thereof to Seller at the Closing, in which event this Agreement shall be terminated as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of 12. If the Closing Date as if made anew at and as of is completed then all such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Dateshall conclusively be deemed satisfied or waived.
(b) The Seller’s obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject Closing and to sell the fulfillment, at or prior to Closing, Property hereunder are conditioned upon satisfaction of each all of the following conditions precedent (conditions, any or all of which may be waived by Seller in writing, in whole or in part, by ▇▇▇▇▇):its sole discretion:
(i1) nStor shall have performed all The performance by Purchaser of its obligations material covenants, undertakings, and complied with all of its covenants required agreements to be performed or to be complied with by it under hereunder and the truth of the material representations and warranties made in this Agreement on or by Purchaser at the time as of which the same were made.
(2) That at no time prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated following have been filed by or against or with respect to Purchaser or a member of Purchaser with a majority ownership interest in Purchaser: (A) a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any other applicable federal or state bankruptcy law or other similar law; (B) the appointment of a trustee or receiver of any property interest; or (C) an assignment for the benefit of creditors. If any of such conditions have not been satisfied at the Closing, then Seller may terminate this AgreementAgreement by giving immediate written notice thereof to Purchaser at the Closing, in which event this Agreement shall be terminated as provided for in Section 12. If the Closing is completed then all such conditions shall conclusively be deemed satisfied or waived.
Appears in 1 contract
Conditions to Closing. (a) nStor's The obligation of the Holder hereunder to consummate the transactions contemplated by this Agreement shall be hereby at the Closing is subject to the fulfillmentsatisfaction, at or prior to Closingbefore the Closing Date, of each of the following conditions, provided that these conditions precedent (any or all of which may are for the Holder’s sole benefit and may, where legally permissible, be waived by the Holder at any time in writing, in whole or in part, its sole discretion by nStor):providing the Company with prior written notice thereof:
(i) ▇▇▇▇▇ The Company shall have performed all duly executed and delivered to the Holder this Agreement.
(ii) The representations and warranties of the obligations 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 the Company has complied in all material respects with all of the covenants required agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(iii) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by this Agreement.
(iv) The Exchange shall have been duly approved by the Company’s shareholders.
(b) The obligation of the Company hereunder to consummate the transactions contemplated hereby at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may, where legally permissible, be waived by the Company at any time in its sole discretion by providing the Holder with prior written notice thereof:
(i) The representations and warranties of the Holder 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 the Holder shall have complied in all material respects with all the agreements and satisfied all the conditions on their part to be complied with by them under this Agreement on performed or satisfied at or prior to the Closing Date.
(ii) ▇▇▇▇▇ No statute, rule, regulation, executive order, decree, ruling or injunction shall have delivered to nStor been enacted, entered, promulgated or endorsed by any and all approvals, consents court or assignments to be obtained by ▇▇▇▇▇ and necessary for governmental authority of competent jurisdiction that prohibits the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(viiii) ▇. ▇▇▇▇▇ The Exchange shall have entered into Employment Agreement as provided for in Section 3(a) hereofbeen duly approved by the Company’s shareholders.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions to Closing. (a) nStor's The obligation of Seller to consummate the transactions contemplated by this Agreement shall be is subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent on or before the Closing Date:
(a) Buyer shall have delivered the Closing Funds, as adjusted pursuant to Section 2.2(a), to Seller or, at Seller’s direction, to any or all third parties in satisfaction of which may be waived in writingFunded Indebtedness, and the Escrow Funds to the Escrow Agent, in whole or each case in part, by nStor):accordance with the terms of this Agreement;
(ib) ▇▇▇▇▇ The representations and warranties set forth in Article 4 shall have been true and correct in all material respects as of the effective date of this Agreement and shall be true and correct in all material respects as of the Closing Date as though made on the Closing Date, except for those representations and warranties which address matters only as of a particular date, which shall continue to be true and correct in all material respects as of that particular date, and Buyer shall have delivered to Seller a certificate to that effect;
(c) Buyer shall have performed all of the obligations and or complied with all of the covenants and agreements required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ Agreement, and Buyer shall have delivered to nStor any and all approvals, consents or assignments Seller a certificate to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.that effect;
(iiid) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor Buyer shall have received the nStor Financing on no notice of legal action or prior to the Closing Date.
(v) There proceeding which shall not have been instituted, pending instituted or overtly threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body agency seeking to restrain restrain, prohibit, invalidate or prohibit any otherwise affect the consummation of the transactions contemplated by this Agreement.;
(vie) ▇. ▇▇▇▇▇ Buyer shall have entered into Employment Agreement as provided for executed and delivered to Seller original or facsimile counterparts of each Transaction Document to which it is a party and the Escrow Agent shall have executed and delivered to Seller original or facsimile counterparts to the Escrow Agreement, in each case in accordance with the provision in Section 3(a) hereof.8.1 permitting the use of facsimile copies;
(viif) Each representation Seller shall have received a good standing certificate and warranty a copy of ▇▇▇▇▇ contained in the Charter Documents and resolutions of the managing member (or other authorizing actions or instruments) of Buyer authorizing the execution, delivery and performance by Buyer of this Agreement shall be true and correct both at the date on which transactions contemplated by this Agreement, and an incumbency certificate evidencing the authority and specimen signature of each manager or officer of Buyer executing this Agreement is signed and at any other certificate provided pursuant to this Section 7.1, each in form and substance reasonably satisfactory to Seller and certified by the secretary or an assistant secretary of Buyer (or another responsible officer of Buyer) as of the Closing Date. Such certification shall state that such Charter Documents and resolutions (or other authorizing actions or instruments) have not been amended, modified, revoked or rescinded and are in full force and effect on and as of the Closing Date as if made anew at and as that all proceedings required to be taken on the part of such time.
(viii) There has not been any material adverse change Buyer in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate connection with the transactions contemplated by this Agreement shall be subject have been duly authorized and taken;
(g) All necessary filings pursuant to the fulfillmentHSR Act shall have been made and all applicable waiting periods thereunder shall have expired or been terminated;
(h) Seller shall have received the release of AAC by SWF Airport Acquisition, at Inc. (“SWFAA”) of any and all obligations of AAC to SWFAA under the Assignment, Extension and Modification Agreement (the “AEM Agreement”) dated April 25, 2005 among SWFAA, AAC and the Company, and under the Hangar 112 Lease, the Hangar 118 Lease, the FBO Agreement and the Commercial Operating Permit, each as defined in the AEM Agreement whether such obligations arose or arise prior to or after the Closing, of each of the following conditions precedent (any or all of which may be waived . Buyer shall use commercially reasonable efforts to assist Seller in writing, in whole or in part, by ▇▇▇▇▇):obtaining such release;
(i) nStor Seller shall have performed received the release of AAC by Rifton Management, LLC (“Rifton”) of any and all obligations of AAC to Rifton under the Asset Purchase Agreement dated January 12, 2005 between AAC and Rifton (the “Rifton Agreement”). The Company shall use commercially reasonable efforts, including without limitation, its guarantee of the obligations of AAC under the Rifton Agreement, to obtain such release;
(j) Buyer (i) shall have received acceptable results of a final Phase I Environmental Site Assessment prepared in accordance with the ASTM E 1527-05 Standard for the property leased by the Company (the “Southwest Quadrant Fuel Farm”) pursuant to that certain Southwest Fuel Farm Lease Agreement, dated May 1, 2006 (the “Southwest Fuel Farm Lease Agreement”), and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered the right to ▇▇▇▇▇ any and all approvalsconduct, consents or assignments to be obtained by nStor and necessary for and/or Seller shall have commenced, the consummation soil investigation specified in Section 3.3 of the transactions contemplated hereby.Southwest Fuel Farm Lease Agreement in a timely manner and in scope reasonably acceptable to Buyer; and
(iiik) There Seller shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or received a release and waiver from the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any which is in the form of the transactions contemplated by this Agreement.Exhibit “G.”
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Macquarie Infrastructure CO LLC)
Conditions to Closing. (a) nStor's 5.01 The obligation of SELLERS and PROVO to consummate the transactions contemplated to be performed by this Agreement shall be them in connection with the Closing are subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):conditions:
(ia) The representations and warranties of GSTN, KIBOGA and ▇▇▇▇▇▇ set forth in Sections 10.03, 10.04 and 10.05 shall be true and correct in all material respects when made and shall be deemed to have been made again at and as of the Closing Date, and GSTN, KIBOGA and ▇▇▇▇▇▇ shall have performed and satisfied all of the obligations and complied with all of the covenants conditions herein required to be performed or to be complied with satisfied by each of them under this Agreement on or prior to the Closing DateClosing.
(b) By no later than July 31, 2002, PROVO, its counsel and its advisors shall have completed such financial, business, and legal "due diligence" investigations of the properties, assets, financial condition, operating results, business, business prospects and business relationships of GSTN and KIBOGA as they in their discretion shall deem appropriate, and the results of such investigations shall be satisfactory to PROVO in its sole discretion.
(c) No action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction which has a likelihood of resulting in an unfavorable injunction, judgment, order, decree, ruling or charge that would (i) prevent consummation of any of the material transactions contemplated by this Agreement, or (ii) cause any of the material transactions contemplated by this Agreement to be rescinded following consummation.
(d) None of GSTN and KIBOGA shall have experienced any material adverse change to their respective assets, properties, Liabilities, business, operations, financial conditions or prospects from the date hereof and until the Closing.
(e) Subject to the terms and conditions of the Merger Agreement, KIBOGA shall be merged with and into GSTN, in accordance with Delaware Law, the separate corporate existence of KIBOGA shall cease and GSTN shall continue as the surviving corporation.
(f) GSTN shall have available funds equal to at least US$5,000,000 in cash to consummate the transactions hereunder, and SELLERS shall have received a certificate signed by an executive officer of GSTN, dated as of the Closing Date, to such effect.
(g) Each of the existing directors of GSTN shall have resigned or be removed from office without cause and SELLERS shall be entitled to appoint two (2) Board members, ▇▇▇▇▇▇ shall be entitled to appoint two (2) Board members and the remaining Board member shall be an independent.
(h) Each of the existing officers of GSTN shall have resigned or be removed from office without cause and ARRANGOIZ and ▇▇▇▇▇▇ shall have delivered been appointed as Co-Presidents of GSTN.
(i) GSTN shall have taken all necessary actions to nStor any maintain its stock traded on the OTC Bulletin Board at the effective time of the Closing. These actions shall include, without limitation, filing with the SEC all pending financial forms, including, all Form 10-K and all approvals, consents or assignments Forms !0-Q required to be obtained filed by ▇▇▇▇▇ and GSTN up to the Closing.
(j) GSTN shall have completed all regulatory filings necessary or convenient for the consummation of it to consummate the transactions contemplated hereby, including the SEC Filings.
(iiik) nStor GSTN, KIBOGA and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement executed and delivered all of the Transaction Documents to which they are Parties. Each of SELLERS and PROVO may waive any condition specified in this Section 5.01, provided that SELLERS and PROVO execute a written waiver thereof, specifically referenced as provided for in Section 3(a) hereofsuch therein, at or prior to the Closing.
5.02 The obligation of GSTN to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(viia) Each representation The representations and warranty warranties of KIBOGA, ▇▇▇▇▇▇ contained ▇▇▇▇▇ and SELLERS set forth in this Agreement Sections 10.01, 10.02, 10.03 and 10.04 shall be true and correct both at the date on which this Agreement is signed in all material respects when made and shall be deemed to have been made again at and as of the Closing Date as if made anew at Date, and as KIBOGA, ▇▇▇▇▇▇, PROVO and SELLERS shall have performed and satisfied all obligations and conditions herein required to be performed or satisfied by each of such time.
(viii) There has not been any material adverse change in them on or prior to the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing DateClosing.
(b) No action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction which has a likelihood of resulting in an unfavorable injunction, judgment, order, decree, ruling or charge that would (i) prevent consummation of any of the material transactions contemplated by this Agreement, or (ii) cause any of the material transactions contemplated by this Agreement to be rescinded following consummation.
(c) PROVO and the Subsidiaries shall not have experienced any material adverse change to their assets, properties. Liabilities, business, operations, financial conditions or prospects from the date hereof and until the Closing.
(d) PROVO-US shall have been incorporated by PROVO.
(e) PROVO, KIBOGA, ▇▇▇▇▇▇, and SELLERS shall have executed and delivered all of the Transaction Documents to which they are Parties. GSTN may waive any condition specified in this Section 5.02, provided that GSTN executes a written waiver thereof, specifically referenced as such therein, at or prior to the Closing.
5.03 The obligations obligation of KIBOGA and ▇▇▇▇▇▇ to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) The representations and warranties of PROVO, SELLERS and GSTN set forth in Sections 10.01, 10.02 and 10.05 below, shall be true and correct in all material respects when made and shall be deemed to have been made again at and as of the Closing Date, and GSTN, SELLERS and PROVO shall have performed and satisfied all obligations and conditions herein required to be performed or satisfied by each of them on or prior to the Closing.
(b) No action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction which has a likelihood of resulting in an unfavorable injunction, judgment, order, decree, ruling or charge that would (i) prevent consummation of any of the material transactions contemplated by this Agreement, or (ii) cause any of the material transactions contemplated by this Agreement to be rescinded following consummation
(c) PROVO-US shall be subject have been incorporated by PROVO.
(d) PROVO, SELLERS and GSTN shall have executed and delivered all of the Transaction Documents to the fulfillmentwhich they are Parties KIBOGA may waive any condition specified in this Section 5.03, provided that KIBOGA and ▇▇▇▇▇▇ execute a written waiver thereof, specifically referenced as such therein, at or prior to the Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Greystone Digital Technology Inc)
Conditions to Closing. (a) nStor's obligation The obligations of the Purchaser to consummate go forward on the Closing Date with the consummation of the transactions contemplated by this Agreement shall be herein is subject to the fulfillmentsatisfaction, at or prior to Closingwaiver, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):precedent:
(i) ▇▇▇▇▇ shall have performed On and as of the Closing Date, all of the obligations representations and complied with all warranties of the covenants required Company set forth herein shall be true and correct in all material respects (without any exception for approval of shareholders of the Company with respect to be performed any representations or warranties contained herein). At the Closing, the Company shall deliver to be complied with by them under this Agreement on or prior to the Purchaser a written certificate, dated the Closing Date, reaffirming such representations and warranties as of the Closing Date, including that any representations and warranties are no longer qualified by an exception concerning the approval of the shareholders of the Company.
(ii) ▇▇▇▇▇ To the extent it is determined that any approval of shareholders of the Company required by the rules of Nasdaq for the issuance by the Company of the Purchased Shares is required, such approval shall have delivered been obtained; provided, however, that in the event there is a closing hereunder without shareholder approval being obtained, the Company shall be deemed to nStor any have made a representation and all approvals, consents or assignments warranty to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated herebyPurchaser that such approval was not required.
(iii) nStor All of the transactions contemplated by the Purchase Agreement, dated July 15, 1998, between the Company and its accountants, attorneys and other representatives the Purchaser (the "Purchase Agreement") shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andatacosimultaneously be consummated.
(iv) nStor shall have received the nStor Financing on or prior to On and as of the Closing Date.
(v) There , there shall not have been instituted, be pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party litigation or governmental agency, commission, bureau or body seeking proceeding to restrain restrict or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment , the Voting Agreement, the Shareholders' Agreement, the Co-Marketing Agreement, the NBD Subordination Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at or the date on which this Agreement is signed and at and as Security Agreement, including the issuance of the Closing Date as if made anew at and as Purchased Shares, nor shall there be outstanding any order, injunction or decree of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party court or governmental agency, commission, bureau body restricting or body seeking to restrain or prohibit prohibiting any of the transactions contemplated by this Agreement., the Voting Agreement, the Shareholders' Agreement, the Co-Marketing Agreement,
Appears in 1 contract
Sources: Stock Purchase Agreement (Universal Standard Medical Laboratories Inc)
Conditions to Closing. (a) nStor's The obligation of the Companies to consummate the transactions contemplated by this Agreement shall be Closing is subject to the fulfillment, at or prior to Closing, of each satisfaction of the following conditions precedent (conditions, but compliance with or the occurrence of any or all of which such condition may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed for all of the obligations Companies by a writing signed by RRHI:
(1) The representations and complied with all warranties of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any Employees and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ POII contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date Date, with the same effect as if though such representations and warranties had been made anew at on and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b2) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated Employees and POII shall have performed, complied with, or satisfied all agreements, representations, warranties, and conditions required by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed performed, complied with, or to be complied with satisfied by it under this Agreement on at or prior to the Closing Date, including without limitation the delivery of the items required to be delivered at Closing by the Employees pursuant to Section 4 above.
(ii3) nStor No action or proceeding shall have delivered be pending or threatened against the Employees at any time prior to or at the Closing Date before any court or governmental body by any person or public agency or authority seeking to restrain, enjoin, or prohibit, seeking damages or other relief in connection with, the execution and delivery of this Agreement or the transfer of the Transferred Assets hereunder.
(4) RRHI and L▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation shall have received approval of the transactions contemplated herebyexecution, delivery and performance of this Agreement by their respective Boards of Directors.
(iiib) There The obligation of the Employees to consummate the Closing is subject to the satisfaction of the following conditions, but compliance with or the occurrence of any such condition may be waived by a writing signed by both Employees:
(1) The representations and warranties of the Companies contained in this Agreement shall not be true and correct on and as of the Closing Date, with the same effect as though such representations and warranties had been made on and as of the Closing Date.
(2) The Companies shall have been institutedperformed, complied with, or satisfied all agreements, representations, warranties, and conditions required by this Agreement to be performed, complied with, or satisfied by it at or prior to the Closing Date, including without limitation the delivery of the items required to be delivered at Closing by the Companies pursuant to Section 4 above.
(3) No action or proceeding shall be pending or threatened against Andatacothe Companies at any time prior to or at the Closing Date before any court or governmental body by any person or public agency or authority seeking to restrain, ▇▇▇▇▇enjoin, nStor or prohibit, seeking damages or other relief in connection with, the execution and delivery of this Agreement or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any transfer of the transactions contemplated by this AgreementTransferred Assets hereunder.
Appears in 1 contract
Sources: Settlement and Restructuring Agreement (Raptor Resources Holdings Inc.)
Conditions to Closing. (a) nStor's 7.1 Conditions to the Obligation of the Investor. The obligation of the Investor to consummate the transactions contemplated by this Agreement hereby shall be subject to the fulfillment, at satisfaction or prior to Closing, of each of waiver by the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement Investor on or prior to the Closing Date of each of the following conditions:
(a) Each of the representations and warranties of the Participating Securityholders and of the Company contained in Articles III and IV shall be true, in the case of any representation or warranty that is qualified as to materiality, in all respects, and in the case of any representation or warranty that is not so qualified, in all material respects, in each case, when made and as of the Closing Date, with the same effect as though those representations and warranties had been made on and as of the Closing Date; each of the covenants and agreements of the Participating Securityholders and the Company to be performed on or prior to the Closing Date shall have been duly performed in all material respects; and the Investor shall have received at the Closing certificates to that effect dated as of the Closing Date and executed on behalf of the Participating Securityholders and the Company.
(iib) ▇▇▇▇▇ There shall not have delivered to nStor been issued and be in effect any and all approvalsorder, consents decree or assignments to be obtained by ▇▇▇▇▇ and necessary for judgment of or in any court or tribune of competent jurisdiction preventing the consummation of the transactions contemplated hereby.
(iiii) nStor and All directors of the Company or any of its accountants, attorneys and other representatives Subsidiaries whose resignations shall have had full and complete access during normal business hours been requested in writing by the Investor not less than 5 days prior to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor the Closing Date shall have received submitted their resignations or been removed from office effective as of the nStor Financing on or Closing Date and (ii) the persons designated, in writing not less than 5 days prior to the Closing Date, by the Investor to become directors of the Company and any of its Subsidiaries shall be elected as such directors effective as of the Closing Date.
(vd) There All corporate, partnership and other proceedings of each Participating Securityholder and the Company in connection with the transactions contemplated by this Agreement and all documents and instruments incident thereto, shall not be reasonably satisfactory in substance and form to the Investor, and the Investor shall have been institutedreceived all such documents and instruments, pending or threatened against Andatacocopies thereof, certified if requested, as may be reasonably requested.
(e) The Consulting Agreement, dated as of February 28, 1994, by and among the Company, WESCO and ▇▇▇▇▇▇▇, nStor or Dubilier & Rice, Inc. shall have been terminated.
(i) The CBS Equity Agreements, the Company any suitFund IV Stock Subscription Agreement and the CBS-Fund IV Governance Side Letter dated as of February 28, action or other proceeding 1994 shall have been terminated, (ii) each of the Equity Agreements shall have been amended in the manner contemplated by any private party or governmental agencySection 6.12(b) and (iii) the Compensation Committee of the Company's Board of Directors shall have duly adopted (A) a resolution pursuant to and in accordance with Section 8 of the Option Plans and the Management Stock Option Agreements, commissionin which the Compensation Committee has reasonably determined in good faith that, bureau or body seeking following the Closing Date (and after giving effect to restrain or prohibit any all the transactions contemplated hereby), all of the Rolled Over Options shall be "Alternative Options", as defined in the Option Plans and the Management Stock Agreements, (B) a resolution providing that no further shares of Class A Common Stock may be issued and sold pursuant to the Stock Purchase Plan and no further options to acquire shares of Class A Common Stock may be granted under the Stock Option Plan and (C) a resolution providing that there shall be no acceleration of the vesting schedule for the Branch Options in connection with the consummation of the transactions contemplated by this Agreement.
(vii) ▇. ▇▇▇▇▇ All Non-Management Securityholders shall be Non-Management Participating Securityholders and (ii) and each Non-Management Participating Securityholder shall have entered into Employment Agreement as provided for delivered to the Company (A) certificates evidencing such Securityholder's Repurchased Shares, duly endorsed in blank or accompanied by stock transfer powers duly executed in blank, if any, with all necessary stock transfer tax stamps attached thereto, if any, and cancelled, and (B) certificates meeting the requirements of Treasury Regulation ' 1.1445-2 to the effect that (x) such Securityholder is not a foreign person within the meaning of section 1445(b)(2) of the Code and the Treasury Regulations hereunder or (y) such Securityholder's interest in the Company is not a "United States real property interest" within the meaning of Section 3(a897(c) hereofof the Code and the Treasury regulations thereunder.
(viih) Each representation Management Securityholder shall have delivered to the Investor (i) certificates evidencing such Securityholder's Investor Purchased Shares, duly endorsed in blank or accompanied by stock transfer powers duly executed in blank, if any, with all necessary stock transfer tax stamps attached thereto, if any, and warranty cancelled, and (ii) certificates meeting the requirements of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at Treasury Regulation ' 1.1445-2 to the date on which this Agreement effect that (x) such Securityholder is signed and at and as not a foreign person within the meaning of section 1445(b)(2) of the Closing Date as if made anew at Code and as the Treasury Regulations hereunder or (y) such Securityholder's interest in the Company is not a "United States real property interest" within the meaning of such timeSection 897(c) of the Code and the Treasury regulations thereunder.
(viiii) There has not Since the Participating Securityholder Signing Date, there shall have been any no material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Date.
(b) The obligations of ▇▇▇▇▇ to consummate the transactions contemplated participation by this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived Management Securityholders in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement, either in respect of the continued participation by Management Securityholders as Management Participating Securityholders or in respect of the aggregate number of the Participating Management Securityholders' Rolled Over Shares.
Appears in 1 contract
Sources: Recapitalization Agreement (Wesco Distribution Inc)
Conditions to Closing. (a) nStor's obligation The obligations of the Company and Holder to consummate the transactions contemplated by this Agreement shall be subject to the fulfillmentfulfillment or waiver, at or prior to the Closing, of each the conditions that all representations and warranties of Holder and the following conditions precedent (any or all of which may be waived in writingCompany, in whole or in partrespectively, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing, and consummation of the Closing Date as if made anew at shall constitute a reaffirmation by Holder and the Company, respectively, of each of the representations, warranties and agreements contained in this Agreement as of such time.
(viii) There has not been any material adverse change the Closing, and that all covenants and agreements contained in this Agreement to be complied with by ▇▇▇▇▇▇ and the businessCompany, operations and financial conditions of Andataco from and after the date of the 1998 10-K until respectively, on or before the Closing Dateshall have been complied with in all material respects.
(b) The obligations of ▇▇▇▇▇ the Company and Holder to consummate the transactions contemplated by this Agreement shall be subject to the fulfillmentfulfillment or waiver, at or prior to the Closing, of each the conditions that no governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the following conditions precedent (any transactions contemplated hereby illegal or all of which may be waived in writing, in whole otherwise preventing or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the prohibiting consummation of the transactions contemplated hereby.
(iiic) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or The obligation of the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of consummate the transactions contemplated by this AgreementAgreement shall be subject to the fulfillment or waiver, at or prior to the Closing, of the condition that Holder shall have made the delivery contemplated by Section 4.2(a).
(d) The obligation of Holder to consummate the transactions contemplated by this Agreement shall be subject to (i) the fulfillment or waiver, at or prior to the Closing, of the condition that the Company shall have made the delivery contemplated by Section 4.2(b) and (ii) no suspension of the qualification of the Shares for offering or sale or trading in any jurisdiction, or initiation or threatening of any proceedings for any of such purposes, shall have occurred.
Appears in 1 contract
Sources: Note Purchase and Sale Agreement (Hycroft Mining Holding Corp)
Conditions to Closing. (a) nStor's obligation All actions and other legal matters incident to consummate the transactions contemplated by authorization, form and validity of this Agreement, the Operating Agreement, the Related Agreements, the Common Shares, the Preferred Shares, the Notes, the Final PPM, and all actions and other legal matters relating to this Agreement shall be subject to the fulfillment, at or prior to Closing, of each of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by nStor):
(i) ▇▇▇▇▇ shall have performed all of the obligations and complied with all of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor , shall be satisfactory in all material respects to the Placement Agent and its accountantscounsel for the Placement Agent, attorneys and other representatives the Issuer shall have had full furnished to such counsel all documents and complete access during normal business hours to all officesinformation that such counsel may reasonably request in connection with this Agreement, facilitiesthe Operating Agreement, properties, assets, books, agreements, files the Related Agreements and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation hereby and warranty of ▇▇▇▇▇ contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and as of the Closing Date as if made anew at and as of such time.
(viii) There has not been any material adverse change in the business, operations and financial conditions of Andataco from and after the date of the 1998 10-K until the Closing Datethereby.
(b) The obligations Copies of ▇▇▇▇▇ to consummate the transactions contemplated by this Agreement Final PPM (and any amendments or supplements thereto) shall be subject have been distributed to the fulfillmentPlacement Agent in accordance with this Agreement, at or prior to Closing, of each and the sale of the following conditions precedent (any or all of which may be waived in writing, in whole or in part, by ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations Preferred Shares and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There Notes shall not have been instituted, suspended in any jurisdiction and no suspension proceeding shall have been commenced or shall be pending or threatened against Andatacothreatened.
(c) The obligations of the Placement Agent under this Agreement, as agent of the Issuer, to solicit offers to purchase Securities will be subject to (i) the accuracy as of the date hereof and the Closing Date (as if made at the Closing Date) of (x) the representations and warranties on the part of the Issuer and the Investment Manager and (y) the statements of the authorized representatives of the Issuer and the Investment Manager made in any certificates pursuant to the provisions hereof, (ii) the performance by each of the Issuer and the Investment Manager of its obligations hereunder and (iii) the following additional conditions precedent.
(d) The Preferred Shares and the Notes to be issued under the Indenture must have received a "AAA" rating from Moody's Investors Service, Inc. ("MOODY'S") and a "▇▇▇▇▇" rating from Standard & Poor's Rating Services, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any a division of the transactions contemplated by this AgreementMcGraw-Hill Companies, Inc. ("S&P").
Appears in 1 contract
Sources: Private Placement Agency Agreement (York Enhanced Strategies Fund, LLC)
Conditions to Closing. (a) nStor's obligation The respective obligations of each party to consummate effect the transactions contemplated by this Agreement herein shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent conditions, any or all of which be waived, in whole or in part, to the extent permitted by applicable law:
(i) No governmental entity or federal or state court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, judgment, injunction or other order (whether temporary, preliminary or permanent), in any case which is in effect and which prevents or prohibits consummation of the transactions contemplated in this which is in effect and which prevents or prohibits consummation of the transactions contemplated in this Agreement; provided, however, that the parties shall use their best efforts to cause any such decree, judgment, injunction or other order to be vacated or lifted.
(ii) In the manner contemplated by Section 14(c) of the Exchange Act and the rules and regulations promulgated thereunder, the Information Statement shall have been distributed to Alpha's stockholders and the time period contemplated by Rule 14c-2(b) promulgated under the Exchange Act shall have elapsed.
(b) The obligations of Alpha to effect the transactions contemplated herein shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived in writingwaived, in whole or in part, to the extent permitted by nStor):applicable law:
(i) ▇▇▇▇▇ shall have performed all Each of the obligations representations and complied with all warranties of the covenants required to be performed or to be complied with by them under this Agreement on or prior to the Closing Date.
(ii) ▇▇▇▇▇ shall have delivered to nStor any and all approvals, consents or assignments to be obtained by ▇▇▇▇▇ and necessary for the consummation of the transactions contemplated hereby.
(iii) nStor and its accountants, attorneys and other representatives shall have had full and complete access during normal business hours to all offices, facilities, properties, assets, books, agreements, files and records of Andataco, including financial and operating data and other information regarding ▇▇▇▇▇ and Andataco.
(iv) nStor shall have received the nStor Financing on or prior to the Closing Date.
(v) There shall not have been instituted, pending or threatened against Andataco, ▇▇▇▇▇, nStor or the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking to restrain or prohibit any of the transactions contemplated by this Agreement.
(vi) ▇. ▇▇▇▇▇ shall have entered into Employment Agreement as provided for in Section 3(a) hereof.
(vii) Each representation and warranty of ▇▇▇▇▇ Sea Sun contained in this Agreement shall be true and correct both at the date on which this Agreement is signed and at and in all material respects as of the Closing Date Closing, except that those representations and warranties which address matters only as if made anew at of a particular date shall remain true and correct in all material respects as of such timedate. Alpha shall have received a certificate of the principal executive officer of Sea Sun to such effect.
(viiiii) There has not been any Sea Sun shall have performed or complied in all material adverse change in respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the business, operations and financial conditions of Andataco from and after the date Closing. Alpha shall have received a certificate of the 1998 10-K until the Closing Dateprincipal executive officer of Sea Sun to such effect.
(bc) The obligations of ▇▇▇▇▇ Sea Sun to consummate effect the transactions contemplated by this Agreement herein shall be subject to the fulfillment, satisfaction at or prior to Closing, of each the Closing of the following conditions precedent (conditions, any or all of which may be waived in writingwaived, in whole or in part, to the extent permitted by applicable law:
(i) Each of the representations and warranties of Alpha contained in this Agreement shall be true and correct in all material respects as of the Closing, except, that those representations and warranties which address matters only as of a particular date shall remain true and correct in all material respects as of such date. Sea Sun shall each have received a certificate of the principal executive officer of Alpha to such effect.
(ii) Alpha shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing. Sea Sun shall have received a certificate of the principal executive officer of Alpha to such effect.
(iii) ▇▇▇▇ ▇. ▇▇▇▇, III and ▇▇▇▇ Beasty have submitted their resignation as directors of Alpha, such resignations are in form and substance satisfactory to Sea Sun. ▇▇▇▇▇):
(i) nStor shall have performed all of its obligations and complied with all of its covenants required to be performed or to be complied with by it under this Agreement on or prior to the Closing Date.
(ii) nStor shall have delivered to ▇ ▇▇▇▇▇ any and all approvals, consents or assignments to be obtained by nStor and necessary for the consummation of the transactions contemplated hereby.
(iii) There shall not have been instituted, pending or threatened against Andataco▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, nStor or ▇▇▇▇▇ ▇▇▇▇▇ and such other person as may be selected by Sea Sun shall have been elected to serve as directors of Alpha.
(iv) Alpha shall have received the Company any suit, action or other proceeding by any private party or governmental agency, commission, bureau or body seeking necessary approval to restrain or prohibit any amend its Certificate of Incorporation to increase Alpha's authorized capital stock from 10,000,000 shares of common stock to 100,000,000 shares of common stock and unlimited number of preferred stock.
(v) Alpha shall have received the transactions contemplated by this Agreementnecessary approval to change the name from Alpha Holding Inc. to Sea Sun Capital Corporation.
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