Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions: (a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval; (b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above; (c) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date; (d) the Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing; (e) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Assets and to operate the business of Seller (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); (f) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e) is satisfied in all respects; (g) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall be satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (International Medical Staffing)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all each of the third party Consents specified in Section 5.2 above;
(c) the representations and warranties set forth in Section 3 Sections 3.1 and 3.2 above that is qualified by materiality shall be true and correct at and as of the Closing Date, and each of the representations and warranties set forth in Sections 3.1 and 3.2 above that is not so qualified shall be true and correct in all material respects at and as of the Closing Date;
(db) the Seller Company and Shareholder shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(ec) the Company and its Subsidiaries shall have procured all of the third party consents specified in Section 3.1 above;
(d) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Assets Company Shares, or (iv) affect adversely the right of any of the Company and its Subsidiaries to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(f) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e) is satisfied in all respects;
(g) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall be satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) 5.1.1 the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date;
(d) 5.1.2 the Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(e) 5.1.3 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummationconsummation or, or (iiiC) affect adversely the right of the Buyer to own the Assets and Acquired Assets, to operate the business former businesses of Seller (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect)the Seller;
(f) 5.1.4 the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e) Section 5.1.1 through 5.1.3 is satisfied in all respects;
(g) 5.1.5 the Buyer shall have received from counsel to the Seller an opinion in form and substance as set forth in Exhibit C attached hereto, addressed to the Buyer, and dated as of the Closing Date; and
5.1.6 all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 5.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) (i) each of the representations and warranties contained in Sections 3.1(a) (Authorization), 3.1(b) (Organization), 3.1(e) (Shares), 4.1 (Organization, Qualification and Power), 4.2 (Capitalization), 4.5 (Title to Assets) and 4.6 (Subsidiaries) shall be true and correct in all respects, and (ii) each of the representations and warranties contained in Section 3.1 or 4 of this Agreement other than those listed in clause (i) of this Section 7.1(a) that are qualified by materiality shall be true and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured correct in all of the third party Consents specified in Section 5.2 above;
(c) respects, and the representations and warranties set forth in Section 3 above 3.1 or 4 that are not so qualified shall be true and correct in all material respects at respects, in each case as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, except to the extent such representations and warranties are made on and as of a specified date, in which case the same will continue on the Closing Date to be true and correct as of the specified date;
(db) the Seller shall and the Company will have performed and complied with all of its their respective covenants hereunder contained in this Agreement in all material respects through the Closing;
(ec) the Seller will have procured the third party consents, authorizations and approvals set forth in Schedule 7.1(c);
(d) no action, suit, suit or proceeding shall will be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein Governmental Authority in which an unfavorable injunction, judgment, order, decree, ruling, ruling or charge would would: (i) prevent consummation of any of the transactions contemplated by this Agreement, ; (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, ; or (iii) affect adversely the right of the Buyer to own the Assets Shares and to operate control the business of Seller (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect)Company;
(fe) the Seller shall will have executed and delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(athis Section 7.1(a) -(eto (d) is satisfied in all respects; Table of Contents
(f) the Seller will have entered into the Escrow Agreement in the form attached as Exhibit A;
(g) all actions the Seller will have entered into a transition services agreement with the Buyer, in a form reasonably acceptable to the Parties and on the general terms set forth on Exhibit B (the “Transition Services Agreement”);
(h) the Seller or one or more of its Affiliates will have entered into amendments on commercially reasonable terms related to the Long-Term Agreements, on the general terms set forth on Exhibit C;
(i) each of the Company and the Seller will have delivered a certificate of incumbency, dated as of the Closing Date, as to the officers and other personnel of the Company or the Seller, as applicable, executing this Agreement and any certificate, instrument or document to be taken delivered by such Party at the Closing;
(j) each of the Company and the Seller in connection with will have delivered a certified copy of corporate resolutions authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by this Agreement and all certificates, opinions, instruments, certifying as to the true and other documents required to effect correct versions of each such Party’s organizational documents;
(k) the Buyer and the Seller will have received approval of the transactions contemplated hereby shall be satisfactory in form by this Agreement from the MN PUC and substance the FCC;
(l) the Company will deliver to the Buyer written resignations of all of the incumbent officers, directors or persons holding similar positions of the Company;
(m) the Seller will deliver one or more instruments transferring the Shares to Buyer;
(n) the Seller and the Company will have delivered each payoff letter or invoice related to the payment of the Closing Indebtedness and Transaction Expenses pursuant to Section 2.3(b), including, without limitation, the Payoff Letters;
(o) the Seller and the Company will have delivered the releases, consents, approvals and notices required to be obtained or made in connection with the transactions contemplated by this Agreement set forth in Schedule 7.1(o);
(p) the Seller and the Company will have delivered written evidence of the termination of each of the contracts, agreements and guaranties set forth on Schedule 5.11; Table of Contents
(q) the Seller will execute and deliver a certificate of non-foreign status satisfying the requirements of Treasury Regulation Section 1.1445-2(b); and
(r) the Seller will have delivered an estoppel certificate or other evidence of satisfaction of all amounts owning by the Company to the City of Savage under that certain Lease dated as of September 27, 1984 by and between the City of Savage and the Company. The Buyer may waive any condition specified in this Section 6.1 if it executes 7.1 by providing a writing so stating written waiver at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 ss.3(a) and ss.4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller shall have performed and complied with all of its his covenants hereunder in all material respects through the Closing;
(eiii) the Targets and their respective Subsidiaries, if any, shall have procured all of the third party consents specified in ss.5(b) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Target Interests and to control the Targets and their respective Subsidiaries, if any, or (D) affect adversely the right of any of the Targets or their respective Subsidiaries, if any, to own its assets and to operate the business of Seller its businesses (and no such injunction, judgmentjudg ment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller Buyer shall have delivered received the resignations, effective as of the Closing, of each director and officer of the Targets and their respective Subsidiaries, if any, other than those whom the Buyer shall have specified in writing prior to the Buyer a certificate to Closing;
(vi) the effect that Board of Directors of each of the conditions specified above Targets shall have adopted a resolution approving the transfer, in Sections 6.1(a) -(e) is satisfied accordance with the provisions of this Agreement, of the Target Interests of such Target owned by the Seller, and such resolution shall be in all respects;full force and effect on and as of the Closing Date; and
(gvii) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will, unless otherwise set forth in this Agreement, be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 .
(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Equity Purchase Agreement (Comtelco International Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(eiii) the Target and its Subsidiaries shall have procured all of the material third party consents specified in Section 5(b) above;
(iv) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, country or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Target Shares and to control the Target and its Subsidiaries, or (D) affect materially and adversely the right of any of the Target and its Subsidiaries to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 7(a)(i)-(iv) is satisfied in all respects;
(gvi) all applicable waiting periods (and any extensions thereof) under any applicable merger, trade or competition acts shall have expired or otherwise been terminated and the Parties, the Target, and its Subsidiaries shall have received all authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3(a)(ii), Section 3(b)(ii), and Section 4(c) above;
(vii) the Key Employees and Target shall have entered into, and delivered to the Buyer, employee offer letters in form and substance as set forth in Schedule 9 attached hereto and the same shall be in full force and effect;
(viii) the Buyer shall have received from counsel to the Sellers opinions in form and substance acceptable to the Buyer and counsel to the Buyer, acting reasonably, addressed to the Buyer, and dated as of the Closing Date;
(ix) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Target and its Subsidiaries requested by the Buyer;
(x) the Buyer shall have received Target's and all of its Subsidiaries' minutes books, stock books, stock registries, and bank signature cards;
(xi) an Escrow Agreement substantially in the form of Schedule 3 hereto shall have been validly entered into by all parties thereto other than the Buyer;
(xii) [Intentionally Deleted];
(xiii) all Shareholders other than the Sellers shall have executed and delivered to the Buyer a Purchase Agreement substantially in the form of Schedule 4 hereto;
(xiv) all filings, registrations and exemptions required under all Applicable Securities Law shall have been made or received;
(xv) the Buyer shall have received satisfactory evidence that all existing employment contracts undertakings and employment-related arrangements (including severance agreements) by the Target and its Subsidiaries in favor of the Sellers have been cancelled and all existing obligations between the Target and its Subsidiaries and the Sellers for borrowed money, advances, and other non-salary, non-wage and non-commission arrangements have been settled and discharged.
(xvi) all Target Warrants and all vested Target Options shall have been exercised, Shareholders holding 100 percent of the outstanding Target Shares as at the Closing shall have tendered delivery of their Target Shares, and the holders of all of the outstanding unvested Target Options shall have agreed to amendments to the terms and conditions of their Target Options as more particularly provided in paragraph 2(e) and the Option Plan shall have been amended in form and substance satisfactory to the Buyer;
(xvii) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance substance, and as relevant delivered, to the Buyer;
(xviii) nothing shall have occurred after the date of this Agreement relating to Target which, in the Buyer's reasonable opinion, may have a material adverse effect on the business, financial condition, operations, results of operations, or future prospects of the Target and its Subsidiaries but for greater certainty, this provision does not apply to general market conditions, including currency, interest rate, general stock indices and other factors not specific to Target;
(xix) all Key Employees not party to this Agreement have executed Buyer's standard form Confidentiality, Non-Solicitation and Non-Competition Agreement;
(xx) all option agreements to which any of Target's senior management personnel are party shall have been amended to change the vesting rights of such option holders upon a change of control of Target so that 50% of such options vest on a change of control and the Balance of the options vest in accordance with Buyer's regular options vesting schedule;
(xxi) Target Shareholders Agreement shall have been terminated;
(xxii) Sellers shall, in the reasonable opinion of the Buyer, have commenced the sale of the Tools Business or the Tools Business Shut-Down all as more particularly provided in 5(k); and
(xxiii) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ shall have complied with the covenant set out in Section 5(i). The Buyer may waive any condition specified in this Section 6.1 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3.1 and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(eiii) ▇▇▇▇▇▇ Group and its Subsidiaries shall have procured all of the third party consents specified in Section 5.2 above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own ▇▇▇▇▇▇ Group Shares and to control ▇▇▇▇▇▇ Group and its Subsidiaries, or (D) affect adversely the Assets right of any of ▇▇▇▇▇▇ Group and its Subsidiaries to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 7.1(i)-7.1(iv) is satisfied in all respects;
(gvi) the Parties, ▇▇▇▇▇▇ Group, and its Subsidiaries shall have received all authorizations, consents, and approvals of governments and governmental agencies, if any, referred to in Section 3.1.2, Section 3.2, and Section 4.3 above; and
(vii) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 7.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the ------------------------------------- Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(eiii) the Sellers shall have procured all of the third party consents specified in Section 5(b) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Acquired Assets and to operate the business former businesses of Seller (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect)the Sellers;
(fv) the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 6(a)(i)-(iv) is satisfied in all respects;
(gvi) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 §3(a) and §4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(eiii) the Target shall have procured all of the third party consents specified in §5(b) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Target Shares and to control the Target, or (D) affect adversely the right of the Target to own its assets and to operate the its business of Seller (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e§7(a)(i)-(iv) is satisfied in all respects;
(gvi) the Parties and the Target shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in §3(a)(ii), §3(b)(ii), and §4(c) above;
(vii) Those Target employees to be employed by Buyer shall have executed all necessary Buyer Employment Agreements and related documents;
(viii) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than those whom the Buyer shall have specified in writing prior to the Closing;
(ix) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. ; and
(x) the Buyer shall have received evidence satisfactory to it of the cancellation, termination or revocation of all outstanding options, warrants or other rights of any third party (including Seller) to purchase Target Shares, and The Buyer may waive any condition specified in this Section 6.1 §7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Stock for Stock Exchange Agreement (Intac International Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 §3(a) and §4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(eiii) the Target and its Subsidiaries shall have procured all of the third party consents specified in §5(b) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Target Shares and to control the Target and its Subsidiaries, or (D) affect adversely the right of any of the Target and its Subsidiaries to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e§7(a)(i)-(iv) is satisfied in all respects;
(gvi) each of the Sellers and the Buyer shall have entered into the Employment Agreements attached hereto as Exhibits ▇-▇, ▇-▇, ▇-▇ and B-4 and the same shall be in full force and effect; and
(vii) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. .
(viii) Buyer shall have received all approvals necessary under the rules of the American Stock Exchange for the issuance and listing of the Buyer Shares.
(ix) Buyer shall have received an opinion of Sellers’ counsel in the form of the attached Exhibit D. The Buyer may waive any condition specified in this Section 6.1 §7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(eiii) the Target shall have procured all of the third party consents specified in Section 5(b) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Target Shares and to control the Target, or (D) affect adversely the right of the Target to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 7(a)(i)-(iv) is satisfied in all respects;
(gvi) the Target shall have received all authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3(a)(ii), Section 3(b)(ii), and Section 4(c) above;
(vii) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than those whom the Buyer shall have specified in writing at least 5 business days prior to the Closing;
(viii) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material Material respects through the Closing;
(eiii) SSC will have procured all third party consents and given all notices required in connection with this Agreement and the transactions contemplated hereby, including without limitation all action necessary in connection with and/or the receipt of any notices to, filings with, and authorizations, consents and approvals of governments, governmental agencies, and third parties as set forth herein or in the Disclosure Schedule including any Filing required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, rulingstipulation, injunction, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets and to operate the business of Seller own, operate, or control SSC Shares or SSC (and no such injunction, judgment, order, decree, rulingstipulation, injunction, or charge shall be in effect);
(fv) the Seller Sellers shall have delivered to the Buyer a certificate (without qualification as to knowledge or Materiality or otherwise) to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 7(a)(i)-(iv) is satisfied in all respects;
(gvi) all actions to be taken the acquisition by the Seller in connection with consummation Buyer of SSC Shares shall represent one hundred percent (100%) of the transactions contemplated hereby issued and outstanding capital stock of SSC and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby of such SSC Shares shall be satisfactory free and clear of any Security Interests or other liens, claims or encumbrances of any nature whatsoever;
(vii) the Sellers shall have purchased any personal use assets (e.g., automobiles) from SSC at a purchase price equal to the greater of (A) the net book value of such assets as of the Closing or (B) the outstanding Funded Indebtedness secured by such assets;
(viii) the Buyer shall have received from each Seller an executed joinder to the Stockholders Agreement in the form and substance set forth as Exhibit C attached hereto;
(ix) the Buyer and SSC shall have received from ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ an executed employment agreement in the form and substance attached hereto as Exhibit E;
(x) the Buyer shall have received from each Seller an executed joinder to the Registration Agreement in the form and substance set forth as Exhibit F attached hereto;
(xi) the Buyer shall have received the resignations, effective as of the Closing, of each director of SSC prior to the Closing and the termination of any consulting or management agreements with EDM, Inc. or its Affiliates;
(xii) the Buyer shall be satisfied that the Net Worth of SSC on the Stub Period End equaled or exceeded $1,900,000 or an appropriate adjustment shall have been made to the Purchase Price as provided in Section 2(i);
(xiii) the Buyer shall be satisfied that the Gross Revenues of SSC during the fiscal year ended December 31, 1997 equaled or exceeded $13,297,710 and during the twelve month period ended on the Stub Period End equaled or exceeded $14,000,000;
(xiv) the Buyer shall be satisfied that the Adjusted EBIT of SSC during the fiscal year ended December 31, 1997 equaled or exceeded $648,900 and during the twelve month period ended on the Stub Period End equaled or exceeded $1,470,000;
(xv) the Buyer shall be satisfied in its sole discretion with the results of its continuing legal, financial and business due diligence investigations of SSC, all of which shall be final and completed to Buyer's satisfaction prior to Closing;
(xvi) no material adverse change shall have occurred in SSC's Business or its future prospects;
(xvii) Sellers shall have caused SSC to cancel each outstanding phantom stock, deferred bonus or option plan, if any, and all outstanding SSC Options shall have been canceled pursuant to the Option Cancellation Agreement in the form of Exhibit I hereto (individually a "Option Cancellation Agreement" and collectively the "Option Cancellation Agreements"), with the cost of such cancellation being a reduction of the Cash Portion of the Purchase Price pursuant to Section 2(h) (such reduction to be funded by the Buyer to SSC at the Closing and paid by SSC to the SSC Optionholders at the Closing);
(xviii) Sellers shall have caused each party receiving Buyer's Shares under this Agreement to execute an Equity Subscription Agreement in the form of Exhibit D hereto;
(xix) subject to Section (7)(b)(xiii), all liens and Security Interests securing debts of SSC which have been paid in full prior to or at the Closing shall have been fully released of record to the reasonable satisfaction of the Buyer and all Uniform Commercial Code financing statements covering such debts shall have been terminated;
(xx) no unsatisfied liens for the failure to pay Taxes of any nature whatsoever shall exist against SSC, or against or in any way affecting any SSC Share;
(xxi) the Sellers shall and SSC shall have caused all of SSC's officers, directors and/or Key Employees of SSC to, have repaid in full all debts and other obligations, if any, owed to SSC;
(xxii) the Buyer shall have received from SSC the Financial Statements;
(xxiii) all appropriate corporate and shareholder authorizations of SSC shall have been obtained;
(xxiv) since December 31, 1997, SSC shall have made no dividend, consulting or other payment to the Sellers, except as set forth on Section 4(m) of the Disclosure Schedule and bonuses as set forth on Section 4(m) of the Disclosure Schedule;
(xxv) except as set forth on the Disclosure Schedule, since December 31, 1997, SSC shall not have transferred, conveyed, disposed of and/or sold any of Material assets, except in the Ordinary Course of Business;
(xxvi) all Intellectual Property created or developed by any Seller and any other current employee of SSC that has been used historically by SSC or is being used currently by SSC (other than "work for hire" which has been developed by SSC for a customer and continues to be used by SSC in the performance of continuing services for that customer) shall be one hundred percent (100%) owned by SSC as of the Closing Date;
(xxvii) the Buyer and Newco shall have received from the Sellers an opinion of counsel in the form and substance set forth as Exhibit G hereto; and
(xxviii) at least ninety-five percent (95%) of all shareholders of SSC shall have agreed to participate in the Merger without any dissenter's rights exercised. The Buyer may waive any condition specified in this Section 6.1 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the First Closing and the Accounts Receivable Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) the representations and warranties set forth in Section 3 Article III above shall be true and correct in all material respects at and as of the First Closing DateDate and the Accounts Receivable Closing Date to the extent such representations and warranties are related to the Accounts Receivable;
(db) the Seller shall have performed and complied with all of its covenants hereunder in all material respects through the ClosingFirst Closing and the Accounts Receivable Closing Date, as the case may be;
(ec) the Seller and, if necessary, the Distribution Division shall have procured all of the third party consents specified in Article V above;
(d) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded or rescindable following consummation, or (iii) affect adversely the right of the Buyer to own the Acquired Assets and or to operate the business former businesses of Seller the Distribution Division (and no such injunction, judgment, order, decree, ruling, ruling or charge change shall be in effect);
(fe) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eArticle VII(a)-(d) is satisfied in all respects;
(f) all applicable waiting periods (and any extensions thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or otherwise been terminated and the Seller, the Distribution Division, and the Buyer shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Article III and Article IV above;
(g) the Buyer shall have received from counsel to the Seller an opinion in form and substance as set forth in Exhibit D attached hereto, addressed to the Buyer, and dated as of the First Closing Date;
(h) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be satisfactory in form and substance to the Buyer;
(i) prior to the Accounts Receivable Closing, the Buyer shall have completed the review of the status of the Accounts Receivable and shall have identified such Accounts Receivable that it reasonably believes have suffered a material adverse change, and any specific account so identified by the Buyer shall not constitute a part of the Accounts Receivable; provided that the Buyer shall notify the Seller in writing of the reasons it believes such account receivable has suffered a material adverse change;
(j) No material adverse change shall have occurred to any of the Acquired Assets or the business of the Distribution Division as of the First Closing Date and the Accounts Receivable as of the Accounts Receivable Closing Date, as the case may be;
(k) The Seller shall have changed its name from Eastco Industrial Safety Corp. to Worksafe Industries, Inc.; and
(l) Puerto Rico Safety Corp. shall have changed its name to a name that does not contain the words "Puerto Rico Safety". The Buyer may waive any condition specified in this Section 6.1 7.1 if it executes a writing so stating at or prior to the ClosingClosing Date.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) 7.1.1 the representations and warranties set forth in Section 3 3.1 and Section 4 above shall be true and correct in all material respects at and as of the date hereof and the Closing Date;
7.1.2 Sellers shall have: (di) the Seller shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing, (ii) delivered or caused to be delivered to Buyer at least three business days before the Closing the Closing Date Balance Sheet, and (iii) paid all costs and expenses of such audit or in accordance with Section 11.12 below caused Br▇▇▇ ▇o pay all cost and expenses of such audit and book such costs and expenses prior to October 31, 1998.
7.1.3 Br▇▇▇ ▇hall have procured all of the third party consents specified in Section 5.2 above, except the consent required from the Ontario Assistive Devices Program;
(e) 7.1.4 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Assets Br▇▇▇ ▇hares and to control Br▇▇▇, or (iv) affect adversely the right of Br▇▇▇ ▇o own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); 26
7.1.5 since October 31, 1998, there shall have occurred no event that has had or could have a material adverse effect on Br▇▇▇, its business, operations, financial condition or prospects and Br▇▇▇ ▇hall have been operated following October 31, 1998 until Closing only in the Ordinary Course of Business;
(f) 7.1.6 the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e) 7.1.1 - 7.1.5 is satisfied in all respects;
(g) 7.1.7 the Sellers shall have delivered to the Buyer stock certificates representing all of the Br▇▇▇ ▇hares properly endorsed in blank or accompanied by duly executed assignment documents properly endorsed for transfer;
7.1.8 the Parties, including Br▇▇▇, shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3.1.2, Section 3.2.3, and Section 4.3 above;
7.1.9 the execution and delivery of the Escrow Agreement, substantially in the form of Exhibit "A", the Employment Agreements with St▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇nd Ia▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, substantially in the form of Exhibit "C", the Non-Competition Agreement with each of the Sellers, substantially in the form of Exhibit "D", and such other documents and instruments as the Buyer may reasonably require;
7.1.10 the Buyer shall have received from counsel to the Sellers an opinion in form and substance as set forth in Exhibit "E" attached hereto, addressed to the Buyer, and dated as of the Closing Date;
7.1.11 the Sellers shall have delivered to the Buyer the Waiver and Agreement to Terminate the Shareholders Agreement dated December 18, 1993, substantially in the form of Exhibit "F"; and
7.1.12 the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of Br▇▇▇ ▇ther than those whom the Buyer shall have specified in writing prior to the Closing;
7.1.13 all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 7.1 if it executes a writing so stating at or prior to the Closing. If the Buyer elects to close prior to satisfaction of the conditions listed above in Sections 7.1.1 - 7.1.13, it shall be deemed to have waived compliance of such conditions.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver of the following conditions:
: (a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3(a) and Section 4 above shall be true and correct in all material Material respects at and as of the Closing Date;
; (dii) the Seller shall have performed and complied with all of its covenants hereunder in all material Material respects through the Closing;
; (eiii) Merc▇▇ ▇▇▇ll have procured all necessary third party consents specified in SECTION 5(B) above; (iv) no action, suit, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, judgment order, decree, rulingstipulation, injunction or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, consummation or (iiiC) affect adversely the right of the Buyer to own own, operate or control the Assets and to operate the business of Seller Merc▇▇ ▇▇▇res or Merc▇▇ (and ▇▇d no such injunction, judgment, judgment order, decree, rulingstipulation, injunction or charge shall be in effect);
; (fv) the Seller shall have delivered to the Buyer a certificate (without qualification as to knowledge or Materiality or otherwise) to the effect that each of the conditions specified above in Sections 6.1(a) -(eSECTION 7(a)(i)- (iv) is satisfied in all respects;
; (gvi) all actions to be taken the acquisition by the Seller in connection with consummation Buyer of the transactions contemplated hereby Merc▇▇ ▇▇▇res shall represent one hundred percent (100%) of the issued and outstanding capital stock of Merc▇▇ ▇▇▇ all certificates, opinions, instruments, and other documents required to effect of the transactions contemplated hereby Merc▇▇ ▇▇▇res shall be satisfactory free and clear of any Security Interests or other liens, claims or encumbrances of any nature whatsoever; (vii) the Parties and Merc▇▇ ▇▇▇ll have received all other authorizations, consents and approvals of Governmental Bodies including such authorizations, consents or approvals required under the HSR Act and set forth in form and substance the Disclosure Schedule; (viii) the Buyer shall have received from counsel to the Buyer. The Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior Seller an opinion with respect to the Closing.matters set forth in EXHIBIT B attached hereto, addressed to the Buyer and Buyer's financing sources and dated as of the Closing Date;
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of -------------------------------------- the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its covenants their covenants, agreements and obligations hereunder in all material respects through the Closing;
(eiii) the Target shall have procured all of the third party consents specified in Section 4(z) and received all authorizations, consents and approvals of governments and governmental agencies referred to in Section 3(a)(ii), Section 3(b)(ii) and Section 4(c) above;
(iv) the Buyer shall have received all consents necessary to make its representations and warranties in Section 3(b)(iii) hereof true and complete;
(v) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Target Shares and to control the Target, or (D) affect adversely the right of the Target to own its assets and to operate the business of Seller (its businesses and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(f) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e) is satisfied in all respects;
(g) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall be satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Lexar Media Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 ss.3(a) and ss.4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(eiii) each Target shall have procured all of the third party consents specified in ss.5(b) above;
(iv) no action, suit, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, ruling or charge would would: (iA) prevent consummation of any of the transactions contemplated by this Agreement, ; (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or ; (iiiC) affect adversely the right of the Buyer to own the Assets Target Shares of the Seller of each Target and to control each Target; or (D) affect adversely the right of a Target to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, ruling or charge shall be in effect);
(fv) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(ess.7(a)(i)-(iv) is satisfied in all respects;
(gvi) all applicable waiting periods (and any extensions thereof) under the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇ shall have expired or otherwise been terminated and the Parties, each Target shall have received all other authorizations, consents and approvals of governments and governmental agencies referred to in ss.3(a)(ii), ss.3(b)(ii), and ss.4(c) above;
(vii) the relevant parties shall have entered into side agreements in form and substance as set forth in EXHIBITS C-1 (Employment Agreement), and C-2 (Licensing Agreement), attached hereto and the same shall be in full force and effect;
(viii) the Buyer shall have received from counsel to the Seller an opinion in form and substance as set forth in EXHIBIT D attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(ix) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of each Target other than those whom the Buyer shall have specified in writing at least five business days prior to the Closing;
(x) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the BuyerBuyer and its counsel;
(xi) Buyer and Seller shall have entered into Real Estate Purchase Agreements in form and substance as set forth on EXHIBIT G and EXHIBIT H attached hereto and incorporated herein and the same shall be in full force and effect;
(xii) Buyer and Seller shall have entered into Assumption of Lease Agreements in form and substance as set forth on EXHIBIT I and EXHIBIT J as attached hereto and incorporated herein with respect to the Henr▇ ▇▇▇nty Property and the real property on which the business of Southlake Collision Center, Inc. is conducted (the "Clay▇▇▇ ▇▇▇nty Property"), and the same shall be in full force and effect; and
(xiii) Buyer and the relevant parties shall have entered into an Assumption to Lease Agreement in form and substance as set forth on EXHIBIT K as attached hereto with respect to the lease listed on Section 4(k) of the Disclosure Schedule that pertains to the real property on which the business of Southlake Collision Cobb ▇▇▇nty, Inc. is conducted, and the same shall be in full force and effect. The Buyer may waive any condition specified in this Section 6.1 ss.7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sunbelt Automotive Group Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(eiii) the Target and its Subsidiaries shall have procured all of the third party consents specified in Section 5(b) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Target Shares and to control the Target and its Subsidiaries, or (D) affect adversely the right of any of the Target and its Subsidiaries to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 7(a)(i)-(iv) is satisfied in all respects;
(gvi) The Parties, the Target, and its Subsidiaries shall have received all authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3(a)(ii), Section 3(b)(ii), and Section 4(c) above;
(vii) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Target and its Subsidiaries other than those whom the Buyer shall have specified in writing at least two business days prior to the Closing;
(viii) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be satisfactory in form and substance to the Buyer;
(ix) the Seller shall have no unpaid Liabilities with respect to items incurred or due on or before to the Closing Date, except notes payable to directors.
(x) ▇▇▇▇▇▇ ▇▇▇ (one of the Sellers) shall have entered into an Employment Agreement with the Buyer, which shall secure her services for a period of at least 2 years from October, 2000. The Buyer may waive any condition specified in this Section 6.1 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(eiii) the Target shall have procured all of the third party consents specified in Section 5(b) above, and Buyer shall have procured all of the title insurance commitments, policies, and riders required by Buyer regarding the Real Property, all of which shall be satisfactory to Buyer in Buyer's sole discretion;
(iv) no action, suit, or proceeding shall be pending or threatened in writing before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Target Shares and to control the Target, or (D) affect adversely the right of any of the Target to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) Target shall not have issued any additional stock of any class or series, or have issued or outstanding any options or warrants of any stock or class or series, and shall not have declared any dividend in cash or property with respect to Target's stock, other than distributions of cash as contemplated in Section 2(b) hereof;
(vi) the Seller businesses of Target and NDE shall have been conducted in the ordinary course, and there shall have been no material adverse change in the business, operations, assets or financial condition of Target or NDE from March 31, 1997 to the Closing; Target, NDE or the Sellers shall promptly notify Buyer as soon as any of them learns of any such changes;
(vii) the Target shall have discharged all Financial Debt;
(viii) the aggregate cash on hand of the Target as of the Closing Date shall be equal to or greater than Five Hundred Thousand and no/100 Dollars ($500,000);
(ix) the Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 7(a)(i)-(viii) is satisfied in all respects;
(gx) all applicable waiting periods (and any extensions thereof) under the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇ shall have expired or otherwise been terminated and the Parties and the Target shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3(a)(ii), Section 3(b)(ii), and Section 4(c) above;
(xi) the Buyer shall have received from counsel to the Sellers an opinion in form and substance as set forth in Exhibit E attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(xii) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than those whom the Buyer shall have specified in writing at least five business days prior to the Closing;
(xiii) [RESERVED]
(xiv) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the BuyerBuyer and its counsel;
(xv) Buyer and KVYN shall have executed and delivered leases with regard to each of the parcels of Real Property owned by KVYN, in the form of the attached Exhibits G-1, ▇-▇, ▇-▇, ▇-4 and G-5, and a sublease with regard to the parcel of Real Property located at 518 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (▇▇e "Marks Facility"), in the form of the attached Exhibit G-6. In connection with the sublease of the Marks Facility, KVYN shall have obtained and delivered to Buyer the consent of Marks Co., Inc., the owners of the Marks Facility, to the assignment of the existing lease with regard to the Marks Facility from the Target to KVYN. In the event such consent cannot be obtained, Buyer shall have the right to waive the requirement for such consent or to vacate the Marks Facility; and
(xvi) Buyer and Target each shall have entered into Sales Representation Agreements with Nare▇▇ ▇▇▇ociates, Inc. in the form attached as Exhibit C-1 and Exhibit C-2, respectively. The Buyer may waive any condition specified in this Section 6.1 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement 7.1.1 the Buyer shall have obtained, on terms and conditions satisfactory to Buyer, the necessary financing required to both consummate the transactions contemplated under this Agreement hereby and fund the working capital requirements of Telecom after the Closing;
7.1.2 the Seller and Telecom shall have received entered into a commercial lease for the Requisite Shareholder Approvalpremises located at 285 and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ in the city of Wauconda, Lake County, Illinois, on terms and conditions satisfactory to the Parties;
(b) 7.1.3 the Seller shall have procured filed releases in connection with all liens as set forth in Section 4.5 of the third party Consents specified in Section 5.2 aboveDisclosure Schedule and the terms and conditions of the termination of the liens shall be satisfactory to Buyer;
(c) 7.1.4 the representations and warranties set forth in Section 3 3.1 and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(d) 7.1.5 the Seller shall have performed and complied with all of its his covenants hereunder in all material respects through the Closing;
(e) 7.1.6 no Material 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) Materially and adversely affect adversely the right of the Buyer to own the Assets Subject Shares and to control Telecom, or (iv) Materially and adversely affect the right of Telecom to own its assets and to operate the its business of Seller (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(f) 7.1.7 the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e) Section 7.1.4 -- 7.1.6 is satisfied in all Material respects;
7.1.8 As of the date immediately preceding the Closing, the Most Recent Financial Statement will not reflect an outstanding (gi) note receivable in the amount greater than U.S.$250,000 from Seller and (ii) any accounts payable for "Barter Transactions," as the term is set forth in the Most Recent Financial Statement.
7.1.9 the Seller shall have delivered or caused to be delivered to the Buyer stock certificates representing the Subject Shares, endorsed in blank or accompanied by duly executed assignment documents;
7.1.10 Each of the Seller, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇ shall have entered into the Subscription and Registration Rights Agreement & Stockholder's Certificate with the Buyer substantially in the form set forth in Exhibit A and Exhibit A.1 attached hereto, and on terms and conditions satisfactory to the Parties, and the same shall be in full force and effect;
7.1.11 the Seller shall have entered into an Employment Agreement with the Buyer substantially in the form set forth in Exhibit C attached hereto and the same shall be in full force and effect;
7.1.12 the Buyer shall have received from counsel to the Seller an opinion in form and substance as set forth in Exhibit D attached hereto, addressed to the Buyer, and dated as of the Closing Date;
7.1.13 the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of Telecom other than those whom the Buyer shall have specified in writing prior to the Closing;
7.1.14 the Buyer shall have received all corporate books and records of Telecom; and
7.1.15 all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 7.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to -------------------------------------- consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(cA) the representations and warranties set forth in Section 3 above Article II shall be true and correct in all material respects at and as of the Closing Date;
(dB) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(eC) the Target shall have procured all of the third party consents specified in Section 2.3 above and the Survey (except for those consents covered under Section 6.1(f) below);
(D) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Assets Shares and to control the Target, or (iv) affect adversely the right of the Target to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fE) the Seller ▇▇▇▇▇▇▇▇ shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 6.1(a)-(d) is satisfied in all respects;
(gF) all actions to be taken by applicable waiting periods (and any extensions thereof) under the Seller in connection with consummation of ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act shall have expired or otherwise been terminated and the transactions contemplated hereby Parties and the Target shall have received all certificatesother authorizations, opinions, instrumentsconsents, and other documents required approvals of governments and governmental agencies referred to effect in Section 3.2;
(G) ▇▇▇▇▇▇▇▇ shall have executed the transactions contemplated hereby Escrow Agreement;
(H) ▇▇▇▇▇▇▇▇ shall be satisfactory have entered into a non-competition and consulting agreement with the Target and the Buyer in the form of EXHIBIT 6.1(H) -------------- hereto (the "NON-COMPETITION AND CONSULTING AGREEMENT");
(I) the Buyer shall have received from counsel for ▇▇▇▇▇▇▇▇, an opinion, dated the Closing Date and in form and substance reasonably satisfactory to the Buyer. 's counsel, to the effect that:
(I) the Target is a corporation validly existing and in good standing under the laws of the State of Ohio;
(II) this Agreement and the collateral documents to be executed in connection herewith constitute the valid and binding obligations of ▇▇▇▇▇▇▇▇, enforceable in accordance with their terms except as enforcement may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights generally and except that the availability of the remedy of specific performance or other equitable relief is subject to the discretion of the court before which any proceeding therefor may be brought;
(III) the authorized capital stock of the Target consists of Two Hundred Fifty (250) shares of common stock, no par value per share, and, based upon a review of the minute books and stock books of the Target and upon specified certificates of appropriate officers of the Target, there are 134.5 shares of such stock issued and outstanding and there are 15.5 shares held as treasury stock, all of which issued and outstanding shares are owned of record by the Sellers, have been duly authorized, are validly issued and outstanding, and are fully paid and nonassessable;
(IV) insofar as such counsel are aware, and based upon a review of the minute books and stock books of the Target, neither the Target nor the Sellers are a party to, or bound by, any outstanding option, warrant, agreement (other than this Agreement), preemptive right, proxy, call, commitment or demand or right of any character obligating the Target or the Sellers to sell, issue or otherwise dispose of any capital stock of the Target or any option or rights with respect thereto;
(V) Insofar as such counsel are aware, neither the execution and delivery of this Agreement by ▇▇▇▇▇▇▇▇ nor compliance with the terms and provisions hereof by ▇▇▇▇▇▇▇▇ will violate any provision of any injunction, order or decree of any governmental agency, authority or court of which such counsel are aware; and
(VI) The Non-Competition and Consulting Agreement hereto constitutes the valid and binding obligation of ▇▇▇▇▇▇▇▇, enforceable in accordance with its terms except as enforcement may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights generally and except that the availability of the remedy of specific performance or other equitable relief is subject to the discretion of the court before which any proceeding therefor may be brought;
(J) the Buyer may waive any condition shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than those whom the Buyer shall have specified in this Section 6.1 if it executes a writing so stating at or least five (5) business days prior to the Closing.; such resignation to be accompanied by a waiver of any and all claims against the Target (such resignation and waiver to be in form and content reasonably acceptable to the Buyer and its counsel);
(K) there shall not have occurred any material adverse change since December 31, 1996 in the business, properties, assets, liabilities, results of operations, prospects or financial condition of the Target or physical loss or damage to any of the properties or assets (which, if covered by insurance could not be fully replaced within thirty (30) days of such loss or damage without payment by the Target of a deductible in excess of three (3) per cent of the loss amount) of the Target which materially and adversely affects or impairs the business now being or to be conducted by the Target, and the Sellers shall have delivered to the Buyer a certificate, signed by the Sellers and dated the Closing Date, to all such effects. For purposes of this Section, a "material adverse change" shall be as determined by the Buyer in its sole discretion;
(L) ▇▇▇▇▇▇▇▇ shall have entered into an amendment of the Lease that provides: (i) for the continuation of the present term through December 31, 2007 at the present lease rate; (ii) that upon termination of that present Lease term, the Target shall have an option to extend the Lease for four (4) consecutive terms of five (5) years each, each renewal term subject to adjustment based upon the Consumer Price Index and at such other terms satisfactory to the Buyer; (iii) that the Target shall have a right of first refusal to purchase the Real Estate should ▇▇▇▇▇▇▇▇ ever sell the Real Estate; and (iv) that there are no defaults existing under the Lease as of the Closing Date, nor any condition which, with notice or the passage of time, or both, will result in a default under the Lease;
Appears in 1 contract
Sources: Stock Purchase Agreement (Us Xpress Enterprises Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 §3(a) and §4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(eiii) the Target and its Subsidiaries shall have procured all of the third party consents specified in §5(b) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Target Shares and to control the Target and its Subsidiaries, or (D) affect adversely the right of any of the Target and its Subsidiaries to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e§7(a)(i)-(iv) is satisfied in all respects;
(gvi) the Sellers and the Buyer shall have entered into the Employment Agreements attached hereto and the same shall be in full force and effect; and
(vii) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 §7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) the representations and warranties set forth in Section 3 3.01 and Article IV above (taken collectively and individually) shall be true and correct in all material respects (and each of the representations and warranties contained in Sections 3.01(g), 4.10 and 4.28 shall be true in all respects) at and as of the Closing Date, as though made again at and as of such date, without giving any effect to any amendment of the Disclosure Schedule delivered to the buyer after the date of this Agreement;
(db) the Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(ec) ▇▇▇▇▇ shall have procured all of the third party consents specified in Section 5.02 above, ▇▇▇▇▇ shall have used commercially reasonable efforts to cause ▇▇▇▇▇▇ Business Systems, Inc. to assign to ▇▇▇▇▇ the Intellectual Property identified with an asterisk in Section 4.13(d) of the Disclosure Schedule, ▇▇▇▇▇ shall have been released from any Liability with respect to the loan arrangements with the Colorado National Bank (and all Security Interests in connection therewith shall be discharged) and the guaranties of any obligations of the Seller or any Affiliate of the Seller, and all employees of ▇▇▇▇▇ shall have been released from any obligations to the Seller of any Affiliate of the Seller (other than ▇▇▇▇▇) in respect of noncompetition covenants;
(d) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own Purchased Shares and to control ▇▇▇▇▇, or (iv) have a Material Adverse Effect on the Assets right of ▇▇▇▇▇ to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fe) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(aSection 7.01(a) -(ethrough (d) is satisfied in all respects;
(f) all applicable waiting periods (and any extensions thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or otherwise been terminated, and the Parties and ▇▇▇▇▇ shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3.01(b), 3.02(b), 3.02(c) and 4.03 above;
(g) an estoppel certificate or landlord's acknowledgment from the lessor under the respective leases for the properties leased by ▇▇▇▇▇ in Damascus, Virginia and Parsippany, New Jersey, confirming the matters set forth in Section 4.12(b);
(h) the Seller's Secretary shall have executed and delivered to the Buyer a certificate in form and substance as set forth in Exhibit F attached hereto regarding the Seller's charter, by-laws, authorizing resolutions, and incumbency of officers;
(i) the Seller shall deliver to the Buyer a good standing certificate in respect of itself and ▇▇▇▇▇ issued by the Secretary of State of Colorado, and a certificate of good standing issued by the Secretary of State of each state in which ▇▇▇▇▇ is qualified to do business as a foreign corporation;
(j) the relevant parties shall have entered into side agreements in form and substance as set forth in Exhibits G-1 and G-2 attached hereto, and the same shall be in full force and effect;
(k) the Buyer shall have received from counsel to the Seller and the Seller Stockholders an opinion in form and substance as set forth in Exhibit H attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(l) the Buyer shall have received the resignations, effective as of the Closing Date, of each director and officer of ▇▇▇▇▇ other than those whom the Buyer shall have specified in writing at least five business days prior to the Closing;
(m) the Buyer shall have obtained, on terms and conditions satisfactory to it in its sole discretion, all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of ▇▇▇▇▇ after the Closing Date;
(n) concurrent with the consummation of the transactions contemplated hereby, an Affiliate of the Buyer shall acquire substantially all the assets of ▇▇▇▇▇ Canada;
(o) the Buyer's Board of Directors shall have received a fairness opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ regarding the transactions contemplated herein and in the Asset Agreement, in form and substance satisfactory to such Board of Directors in its sole discretion;
(p) the Buyer shall have satisfied itself, in its sole discretion, that both the remedial actions planned to be taken by ▇▇▇▇▇ to become Year 2000 Compliant, and the person and dollar budget described in connection therewith, as set forth in Section 4.13(f) of the Disclosure Schedule, are adequate; and
(q) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 7.01 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (New England Business Service Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 Sections 3(a) and 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(eiii) Master Products and its Subsidiaries shall have procured all of the third party consents specified in 5(b) above, all of the title insurance commitments, policies, and riders specified in 5(h) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Master Products Shares and to control Master Products and its Subsidiaries, (D) materially and adversely affect the right of any of Master Products and its Subsidiaries to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect), (E) materially and adversely affect any of the assets or liabilities of Master Products; or (F) cause any material adverse Liability (other than the Disclosed Liabilities) that is not reflected on the Most Recent Audited Balance Sheet;
(fv) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e7(a)(i)-(iv) is satisfied in all respects;
(gvi) the Parties' shall have complied with all applicable laws, including the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇, and all applicable waiting periods (and any extensions thereof) under the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇ shall have expired or otherwise been terminated and the Parties and Master Products and its Subsidiaries shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Sections 3(a)(ii), 3(b)(ii) and 4(c) above;
(vii) the Buyer shall have completed its due diligence investigation of the legal and business affairs of Master Products and Seller, including a business audit of Master Products and an environmental audit of all Real Property, the results of which must be reasonably satisfactory to Buyer;
(viii) the Board of Directors of the Buyer's sole shareholder, Escalade, Inc., shall have approved Buyer's purchase of the Master Products Shares;
(ix) the Seller and the Escrow Agent shall have executed and delivered to the Buyer the Escrow Agreement in the form of Exhibit A, attached hereto;
(x) the Buyer shall have entered into satisfactory employment arrangements with Will▇▇▇ ▇▇▇▇▇▇, ▇▇ce President-Sales, and Tony ▇▇▇▇▇▇▇▇▇, ▇▇ant Manager;
(xi) the Seller shall have terminated the employment of Mark ▇▇▇▇▇▇, Mimma Del Rosa▇▇▇ ▇▇▇ Dan ▇▇▇▇▇ ▇▇▇ the Seller shall have procured on executed non-solicitation and confidentiality agreement between Mark ▇▇▇▇▇▇ ▇▇▇ Master Products in a form reasonably acceptable to the Buyer;
(xii) the Seller shall have delivered the Non-Compete Agreement in the form of Exhibit D, attached hereto, executed by Seller's Parent;
(xiii) the Buyer shall have received an Affidavit in the form of Exhibit E, attached hereto, regarding matters related to FIRPTA;
(xiv) the Buyer shall have received from counsel to the Seller an opinion in form and substance as set forth in Exhibit F, attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(xv) the Seller shall have delivered the Indemnification Agreement in the form of Exhibit G, attached hereto, executed by Seller's Parent;
(xvi) the Buyer shall have received from the Seller the original promissory note evidencing the Intercompany Debt, and the same shall be marked "Paid" (or Seller shall provide other satisfactory evidence that the Intercompany Debt shall have been paid in full);
(xvii) the Buyer shall have received the resignations, effective as of the Closing, of each director of Master Products and its Subsidiaries;
(xviii) the Seller shall have delivered to the Buyer evidence of the termination of all agreements (including but not limited to management or similar agreements) between Master Products and/or any of its Subsidiaries, on the one hand, and Seller, Seller's Parent and/or any of their Affiliates, on the other hand (except for such agreements as may be entered into as part of the transaction contemplated hereunder); and
(xix) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all closing certificates, legal opinions, instruments, assignments, transfer documents, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 ss.3(a) and ss.4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller shall have performed and complied with all of its his covenants hereunder in all material respects through the Closing;
(eiii) the Company shall have procured all of the third party consents specified in ss.5(b) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Company Shares and to control the Company, or (D) affect adversely the right of any of the Company and its Subsidiaries to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(ess.7(a)(i)-(iv) is satisfied in all respects;
(gvi) all applicable waiting periods (and any extensions thereof) under the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇ shall have expired or otherwise been terminated and the Parties, the Company, and its Subsidiaries shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in ss.3(a)(ii), ss.3(b)(ii), and ss.4(c) above;
(vii) the relevant parties shall have entered into consulting and employment agreements in form and substance as set forth in Exhibits B-1 through B-2 attached hereto and the same shall be in full force and effect;
(viii) the relevant parties shall have entered into lease amendments, in form and substance satisfactory to Buyer, in connection with the real estate currently leased or owned by the Company;
(ix) the Buyer shall have received from counsel to the Seller an opinion in form and substance as set forth in Exhibit C attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(x) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Company and its Subsidiaries other than those whom the Buyer shall have specified in writing at least five (5) business days prior to the Closing;
(xi) the Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and fund the working capital requirements of the Company and its Subsidiaries after the Closing;
(xii) the Buyer shall have obtained the approval of its Board of Directors and all its lenders to enter into the transactions contemplated herein;
(xiii) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be satisfactory in form and substance to the Buyer;
(xiv) the Buyer shall have received from the Company, in form and substance satisfactory to Buyer; (i) a Power of Attorney in connection with the Company's Drug Enforcement Administration registration; (ii) evidence of the Company's application for registration with the Drug and Enforcement Administration in connection with this transaction; and (iii) any such drug distributor or wholesaler registration, license or other documentation required by the State of South Dakota; and
(xv) no event shall have occurred which would, or reasonably could, have Company Material Adverse Effect. The Buyer may waive any condition specified in this Section 6.1 ss.7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (D & K Healthcare Resources Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing on the Closing Date is subject to satisfaction of the following conditionsconditions on or before May 1, 2001:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 ss.3 above shall be true correct and correct complete in all material respects at and as of the Closing Date, except as set forth on the Disclosure Schedule;
(dii) the Seller Target shall have performed and complied with all of its covenants hereunder hereunder, including the Pre-Closing Covenants set forth in ss.5 above, in all material respects through the Closing;
(eiii) no action, suit, or proceeding commenced by a Person other than Buyer or its Affiliates shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Acquired Assets and or to operate the business of Seller (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect)Business;
(fiv) the Seller Target shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(ess.(7)(a)(i)-(iii) is satisfied in all respects;
(gv) all actions the Target shall have executed and delivered each of an Assignment and Bill of Sale, an Assignment of Intellectual Property and an Assign▇▇▇▇ of Domain Name, in substantially the forms attached hereto as Exhibit A-1, Exhibit A-2 and Exhibit A-3, respectively.
(vi) ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ve executed and delivered a termination of that certain agreement, dated December 20, 1994, between Preferred Rx, Inc. and Target (the "1994 Agreement"), and general release of liability with respect to be taken by the Seller in connection parties relationship prior to the Closing (except for any liability with consummation of respect to the transactions contemplated hereby by this Agreement), in substantially the form attached hereto as Exhibit B (the "Termination Letter");
(vii) the Target shall have executed and all certificatesdelivered each of a License Agreement substantially in the form of Exhibit C-1 attached hereto, opinions, instruments, pursuant to which Buyer grants to Target a non-exclusive royalty-free license to use the names "CPS" and other documents required to effect "Community Prescription Service" (the transactions contemplated hereby "CPS License Agreement") and a Content License Agreement substantially in the form of Exhibit C-2 attached hereto;
(viii) the Target shall be satisfactory in form and substance have presented evidence that it has delivered appropriate documentation to the State of Delaware in order to change its corporate name from Community Prescription Service, Inc. to "Community Capital Partners, Inc."
(ix) the Target shall have paid to Buyer that amount set forth in the letter from Buyer to Target, dated as of the date hereof, relating to certain amounts owed by Target to Buyer. The Buyer may waive any condition specified in this Section 6.1 .
(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Mim Corp)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 SECTION 4 above shall be true and correct in all material respects (except to the extent that any such representation or warranty is qualified by any materiality standard, in which case such representation and warranty shall be true and correct in all respects) at and as of the Closing Date;
(dii) the Seller Company shall have performed provided notices to third parties, and complied shall have procured any third party consents, that the Buyer reasonably requested in connection with all of its covenants hereunder the matters referred to in all material respects through the ClosingSECTION 4(c) above;
(eiii) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Shares and to control the Company and its Subsidiaries, or (D) affect materially and adversely the right of any of the Company or its Subsidiaries to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fiv) the Seller Buyer, the Company, and the other parties thereto shall have delivered entered into a Stockholders' Agreement in the form of EXHIBIT C attached hereto and the same shall be in full force and effect;
(v) the Buyer, the Company, and the other parties thereto shall have entered into a Registration Agreement in the form of EXHIBIT D attached hereto and the same shall be in full force and effect;
(vi) the Parties shall have received all other material authorizations, consents, and approvals of governments and governmental agencies referred to in SECTION 3(b), and SECTION 4(c) above;
(vii) the Company shall have furnished the Buyer with the following certificates:
(A) certificates, executed by the proper official of each jurisdiction, as to the Buyer Good Standing and qualification to do business of the Company and its Subsidiaries in each jurisdiction where the Company or its Subsidiaries is currently qualified to do business;
(B) a certificate from the Secretary of the Company confirming the existence, incorporation and Good Standing of the Company on the Closing Date, and attaching copies of its Organizational Documents, and resolutions authorizing the execution, delivery and performance of this Agreement and all other documents and the taking of all action required thereunder or in connection therewith on behalf of the Company and its Subsidiaries;
(viii) the Buyer shall have received from ▇▇▇▇▇ & ▇▇▇▇▇▇▇ an opinion in form and substance as set forth in EXHIBIT B attached hereto, addressed to the effect that Buyer, and dated as of the Closing Date;
(ix) the Buyer shall have received the written resignations, effective as of the Closing, of each director of each of the conditions specified above Company's Subsidiaries (other than NCI Foods, LLC and W.S.C. Water Management Corp., and the two directors of Northland Cranberries Sales Corp. who reside in Sections 6.1(athe U.S. Virgin Islands) -(e) is satisfied in all respectsand of each director, other than ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, of the Company;
(gx) the Company shall have taken such action so that: (i) ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall be been appointed to the Board of Directors of the Company, (ii) ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall each have been appointed Vice-Chairmen of the Board, (iii) ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall have been appointed as the sole members of the Board of Directors of each of the Company's Subsidiaries (other than NCI Foods, LLC, W.S.C. Water Management Corp. and Northland Cranberries Sales Corp.) and (iv) ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall have been appointed to the Board of Directors of Northland Cranberries Sales Corp., all in accordance with any applicable Organizational Documents and in compliance with all applicable laws;
(xi) all actions to be taken by the Seller Company in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer;
(xii) the Company shall have obtained, in preparation for Closing, at the Company's own cost and expense, and shall have delivered to the Buyer, a commitment for an ALTA Owners Policy of Title Insurance, Form B-1970 (or other form of policy reasonably acceptable to the Buyer), for each parcel of Owned Real Property identified in Section 4(l)(i) of the Disclosure Schedule (the "TITLE COMMITMENTS"), issued by a title insurer satisfactory to the Buyer (the "TITLE INSURER"), in such amount as the Buyer and the Company reasonably determine to be the fair market value (including all improvements thereon), insuring the Buyer's interest in such parcel as of Closing, subject only to the Permitted Encumbrances and standard title insurance exceptions and requirements, which will be removed or satisfied on or before the Closing except as the same relate to matters appearing in title to the Bog Properties that require a survey for removal. The Company shall deliver at the time of delivery of the Title Commitments, copies of all documents of record referred to therein. The Company will provide the Buyer with title insurance policies ("TITLE POLICIES") on or before the Closing, from the Title Insurer based upon the Title Commitments. The Company will deliver to the Title Insurer all affidavits, undertakings and other title clearance documents reasonably necessary to issue the Title Policies and endorsements thereto. Each such Title Policy will be dated as of the date of closing and (a) insure title to the applicable parcels of real estate and all recorded easements benefitting such parcels, subject only to Permitted Encumbrances, (b) contain an "extended coverage endorsement" insuring over the general exceptions contained customarily in such policies, excepting survey matters with respect to the Bog Properties, (c) with respect to the Facility Properties, contain an ALTA Zoning Endorsement 3.1, with parking (or equivalent) to the extent available in the jurisdiction in which the property is located, (d) with respect to the Facility Properties, contain an endorsement insuring that the parcel described in such Title Policy is the parcel shown on the survey delivered with respect to such parcel and a survey accuracy endorsement, (e) contain an endorsement insuring that each street adjacent to such parcel is a public street and that there is direct and unencumbered pedestrian and vehicular access to such street from such parcel, (f) with respect to the Facility Properties, if the real estate covered by such policy consists of more than one record parcel, contain a "contiguity" endorsement insuring that all of the record parcels are contiguous to one another, (g) contain a non-imputation endorsement, (h) contain a tax number endorsement and (i) contain such other endorsements as the Buyer and the Buyer's lender, if any, may reasonably request.
(xiii) The Company has procured, at its own cost and expense, in preparation for the Closing, and shall have delivered to the Buyer, current surveys or existing surveys accompanied with Affidavits of no change of each parcel of the Owned Real Property identified in Section 4(l)(i) of the Disclosure Schedule constituting a Facility Property, prepared by a licensed surveyor, satisfactory to the Buyer, and conforming to 1999 ALTA/ACSM Minimum Detail Requirements for Urban Land Title Surveys, and such standards as the Title Insurer may require as a condition to the removal of any survey exceptions from the Title Policy, and certified to the Buyer, the Buyer's lender and the Title Insurer.
(xiv) the Company and its Subsidiaries shall have obtained and delivered to the Buyer an estoppel certificate with respect to each of the Leases, dated no more than 30 days prior to the Closing Date, from the other party to such Lease, in form and substance satisfactory to the Buyer;
(xv) no damage, destruction, infestation or other change or casualty has occurred with respect to any of the Real Property or any portion thereof that, individually or in the aggregate, would have a material adverse effect on the use or occupancy of the Real Property or the operation of the business of the Company and its Subsidiaries;
(xvi) the Company shall have effected a one for four (1:4) reverse stock split of its Class A Common Stock and Class B Common Stock;
(xvii) each holder of Class B Common Stock shall have converted all of his, her or its shares of Class B Common Stock into Class A Common Stock, such that immediately following the Closing there are no issued or outstanding shares of Class B Common Stock;
(xviii) the Company shall have entered into written agreements with the vendors, suppliers or other creditors set forth on EXHIBIT E attached hereto, which agreements shall be in form and substance satisfactory to the Buyer in its sole discretion;
(xix) the Company's Board of Directors and / or Special Committee thereof shall have received a fairness opinion from Rabobank International; 30
(xx) the Company and the Buyer (or its Affiliate) shall have executed a management services agreement in form and substance satisfactory to the Buyer in its sole discretion;
(xxi) since August 31, 2001, no change, occurrence or development with respect to the Company or its Subsidiaries that was not disclosed in the SEC Documents filed prior to the date of this Agreement or in the Disclosure Schedule shall have occurred or become known to the Buyer that has had or could reasonably be expected to have a material adverse effect on the Company's or any of its Subsidiaries' business, properties, assets, results, operations, or conditions (financial or other), either alone or in the aggregate.
(xxii) the Management Agreement shall have been terminated;
(xxiii) the Severance and Stay Bonus Plan shall have been terminated;
(xxiv) the Buyer shall have received delivery of certificates for the Shares as set forth hereunder;
(xxv) the Company shall have obtained on terms and conditions satisfactory to the Buyer all of the financing it needs in order to consummate the transactions contemplated hereby and, together with the Cash Purchase Price, fund the working capital requirements of the Company and its Subsidiaries after the Closing;
(xxvi) the results of the Buyer's conversations with the Company's customers shall be satisfactory to the Buyer in the Buyer's sole discretion;
(xxvii) the Company's Bylaws shall have been amended in form and substance satisfactory to the Buyer in its sole discretion;
(xxviii) the Company shall have taken such action so that ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and C. ▇▇▇▇▇ ▇▇▇▇▇ shall have been appointed officers of the Company;
(xxix) the Company shall deliver to the Buyer Phase I reports for the Facility Properties satisfactory to the Buyer in the Buyer's sole discretion; and
(xxx) the Company and the other parties to the Assignment, Assumption and Release Agreements shall have executed the Assignment, Assumption and Release Agreements in form and substance satisfactory to the Buyer in its sole discretion. The Buyer may waive any condition specified in this Section 6.1 SECTION 5(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sun Capital Partners Ii Lp)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all each of the third party Consents specified in Section 5.2 above;
(c) the representations and warranties set forth in Section 3 Sections 3.1 and 3.2 above that is qualified by materiality shall be true and correct at and as of the Closing Date, and each of the representations and warranties set forth in Sections 3.1 and 3.2 above that is not so qualified shall be true and correct in all material respects at and as of the Closing Date;
(db) the Seller Company and Shareholder shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(ec) the Company and its Subsidiaries shall have procured all of the third party consents specified in Section 3.1 above;
(d) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Assets Company Shares, or (iv) affect adversely the right of any of the Company and its Subsidiaries to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(e) the Company Shares that are being purchased by the Buyer, when issued, sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued, nonassessable and free from rights of first refusal or other restrictions.
(f) the Seller Company shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(aSection 6.1(a)-(e) -(e) is are satisfied in all respects;
(g) all applicable waiting periods (and any extensions thereof) under the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇ shall have expired or otherwise been terminated and the Parties, including the Company's Subsidiaries, shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3.1(b), Section 3.2(a), and Section 3.3(b) above;
(h) the Buyer shall have received from counsel to the Company an opinion in form and substance as set forth in Exhibit "B" attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(i) the Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby;
(j) the Company and Shareholder shall have entered into and delivered an Investors Rights Agreement substantially in the form attached as Exhibit "C";
(k) the Company and the Buyer shall have entered into and delivered the Distribution and License Agreement substantially in the form attached as Exhibit "D"; and
(l) all actions to be taken by the Seller Company and Shareholder in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Closing6.1.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) i. the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date;
(d) ii. the Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(e) iii. 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets and Acquired Assets, to operate the business of Seller Acquired Assets (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(f) iv. the Seller and the Buyer shall have entered into the Assignment and Assumption of Contracts;
v. the Seller shall have delivered to the Buyer a certificate the Bill ▇▇ Sale;
vi. the Seller and the Buyer shall have received all other authorizations, consents, and approvals of governments and governmental agencies, if any referred to the effect that each of the conditions specified above in Sections 6.1(a) -(e) is satisfied in all respects3 and 4 above;
(g) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall be satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(eiii) all of the third party consents identified on Schedule 1 have been procured;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, rulingstipulation, injunction, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own own, operate, or control the Acquired Assets and to operate the business of Seller (and no such injunction, judgment, order, decree, rulingstipulation, injunction, or charge shall be in effect);
(fv) there shall not be any actual or Threatened judgment, order, decree, stipulation, injunction, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement;
(vi) the Seller shall have delivered to the Buyer a certificate (without qualification as to knowledge or materiality or otherwise) to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 6(a)(i)-(v) is satisfied in all respects;
(gvii) all actions the Buyer shall have received from counsel to be taken by the Seller an opinion, addressed to the Buyer and dated as of the Closing Date in connection with consummation form acceptable to Buyer; (viii) the Board of Directors of Buyer shall have approved the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall be satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Closing.Agreement;
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3(a) and 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller shall have performed and complied with all of its his covenants hereunder in all material respects through the Closing;
(eiii) the Company shall have procured all of the third party consents specified in 5(b) above, including without limitation, the consent of Company's landlords with respect to each of the Store Leases, and GACC, and the Store Leases (including those listed on Schedule 4(k)(ii)), agreements and other rights to use and occupy real property shall be satisfactory to the Buyer, including, without limitations, the Store located at Victoria Mall;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would would
(iA) prevent consummation of any of the transactions contemplated by this Agreement, ;
(iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or ;
(iiiC) affect adversely the right of the Buyer to own the Assets Company Shares and to control the Company ; or
(D) affect adversely the right of the Company to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a7(a)(i)-(iv) -(e) above is satisfied in all respects;
(gvi) the Parties and the Company shall have received all authorizations, consents, and approvals of governments and governmental agencies referred to in 3(a)(ii), 3(b)(iii), and 4(c) above;
(vii) the Buyer shall have received from counsel to the Seller an opinion in form and substance as set forth in Exhibit D attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(viii) at least five (5) business days prior to the Closing, the Buyer shall have received the resignations, effective as of the Closing, of the Company's officers and directors;
(ix) the Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and the Related Transactions;
(x) the closing of each of the Related Transactions shall have occurred, or each of the conditions for the closing of the Related Transactions concurrently with the Closing of the transactions contemplated by this Agreement, shall have been satisfied or waived to the Buyer's satisfaction;
(xi) the Franchisee Litigation shall have been settled on terms and pursuant to documents satisfactory to the Buyer and the Seller;
(xii) the Buyer's due diligence investigation of the Seller and the Company shall have been completed to the Buyer's satisfaction;
(xiii) the Seller shall deliver to the Buyer stock certificates representing all of the issued and outstanding Company shares, endorsed in blank or accompanied by duly executed assignment instruments;
(xiv) all voting trusts, proxies and other agreements or understandings with respect to the voting of capital stock of the Company shall have been terminated before the Closing;
(xv) the Company and the Seller shall deliver the stock book, stock ledger, minute book, and corporate seal of the Company; and
(xvi) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 7(a) if it he executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Fields MRS Original Cookies Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 ss.3 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the each Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(eiii) each Seller shall have procured all of the third party consents specified in ss.5(b) above, all of the title insurance commitments, policies, and riders specified in ss.5(h) above, and all of the surveys specified in ss.5(i) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, consummation or (iiiC) affect adversely the right of the Buyer to own the Assets and Acquired Assets, to operate the business former businesses of Seller the Sellers (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the each Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(ess.6(a)(i)-(iv) is satisfied in all respects;
(gvi) Buyer shall have entered into side agreements in form and substance as set forth in Exhibits G-1, G-2 and G-3, respectively, attached hereto with Robe▇▇ ▇▇▇▇▇, ▇▇gh ▇▇▇▇▇▇▇ ▇▇▇ John ▇▇▇▇▇ ▇▇▇ the same shall be in full force and effect;
(vii) the Buyer shall have received from counsel to the Sellers an opinion in form and substance as set forth in Exhibit H attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(viii) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 .
(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Source Information Management Co)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it AGREEMENT AND PLAN OF SHARE EXCHANGE August __, 2000 Page 11 in connection with the Closing is subject to satisfaction of the following conditions:
(ai) this Agreement and the transactions contemplated under this Agreement Share exchange shall have received the Requisite Shareholder Target Stockholder Approval;
(bii) the Seller Target and its Subsidiaries shall have procured all of the third party Consents consents specified in Section 5.2 ss.5(b) above;
(ciii) the representations and warranties set forth in Section 3 ss.3 above shall be true and correct in all material respects at and as of the Closing Date;
(div) the Seller Target shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(ev) no 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer Surviving Corporation to own the Assets former assets, to operate the former businesses, and to control the former Subsidiaries of the Target, or (D) affect adversely the right of any of the former Subsidiaries of the Target to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);]
(fvi) the Seller Target shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(ess.6(a)(i)-(v) is satisfied in all respects;
(gvii) this Agreement and the Share exchange shall have received the Requisite Approval from the Buyer's Board of Directors;
(viii) the Buyer shall have received from counsel to the Target an opinion in form and substance is deemed appropriate by the Buyer's counsel, addressed to the Buyer, and Dated as of the Closing Date;
(ix) The Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Target and its Subsidiaries other than those whom the Buyer shall have specified in writing at least [five] business days prior to the Closing;] and
(x) all actions to be taken by the Seller Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 ;
(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Share Exchange Agreement (Internet Multi-Media Corp)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 4 above shall be true and correct in all material respects (except to the extent that any such representation or warranty is qualified by any materiality standard, in which case such representation and warranty shall be true and correct in all respects) at and as of the Closing Date;
(dii) the Seller Company shall have performed provided notices to third parties, and complied shall have procured any third party consents, that the Buyer reasonably requested in connection with all of its covenants hereunder the matters referred to in all material respects through the ClosingSection 4(c) above;
(eiii) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Shares and to control the Company and its Subsidiaries, or (D) affect materially and adversely the right of any of the Company or its Subsidiaries to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fiv) the Seller Buyer, the Company, and the other parties thereto shall have delivered entered into a Stockholders' Agreement in the form of Exhibit C attached hereto and the same shall be in full force and effect;
(v) the Buyer, the Company, and the other parties thereto shall have entered into a Registration Agreement in the form of Exhibit D attached hereto and the same shall be in full force and effect;
(vi) the Parties shall have received all other material authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3(b), and Section 4(c) above;
(vii) the Company shall have furnished the Buyer with the following certificates:
(A) certificates, executed by the proper official of each jurisdiction, as to the Buyer Good Standing and qualification to do business of the Company and its Subsidiaries in each jurisdiction where the Company or its Subsidiaries is currently qualified to do business;
(B) a certificate from the Secretary of the Company confirming the existence, incorporation and Good Standing of the Company on the Closing Date, and attaching copies of its Organizational Documents, and resolutions authorizing the execution, delivery and performance of this Agreement and all other documents and the taking of all action required thereunder or in connection therewith on behalf of the Company and its Subsidiaries;
(viii) the Buyer shall have received from ▇▇▇▇▇ & ▇▇▇▇▇▇▇ an opinion in form and substance as set forth in Exhibit B attached hereto, addressed to the effect that Buyer, and dated as of the Closing Date;
(ix) the Buyer shall have received the written resignations, effective as of the Closing, of each director of each of the conditions specified above Company's Subsidiaries (other than NCI Foods, LLC and W.S.C. Water Management Corp., and the two directors of Northland Cranberries Sales Corp. who reside in Sections 6.1(athe U.S. Virgin Islands) -(e) is satisfied in all respectsand of each director, other than ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, of the Company;
(gx) the Company shall have taken such action so that: (i) ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall be been appointed to the Board of Directors of the Company, (ii) ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall each have been appointed Vice-Chairmen of the Board, (iii) ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall have been appointed as the sole members of the Board of Directors of each of the Company's Subsidiaries (other than NCI Foods, LLC, W.S.C. Water Management Corp. and Northland Cranberries Sales Corp.) and (iv) ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall have been appointed to the Board of Directors of Northland Cranberries Sales Corp., all in accordance with any applicable Organizational Documents and in compliance with all applicable laws;
(xi) all actions to be taken by the Seller Company in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer;
(xii) the Company shall have obtained, in preparation for Closing, at the Company's own cost and expense, and shall have delivered to the Buyer, a commitment for an ALTA Owners Policy of Title Insurance, Form B-1970 (or other form of policy reasonably acceptable to the Buyer), for each parcel of Owned Real Property identified in Section 4(l)(i) of the Disclosure Schedule (the "Title Commitments"), issued by a title insurer satisfactory to the Buyer (the "Title Insurer"), in such amount as the Buyer and the Company reasonably determine to be the fair market value (including all improvements thereon), insuring the Buyer's interest in such parcel as of Closing, subject only to the Permitted Encumbrances and standard title insurance exceptions and requirements, which will be removed or satisfied on or before the Closing except as the same relate to matters appearing in title to the Bog Properties that require a survey for removal. The Company shall deliver at the time of delivery of the Title Commitments, copies of all documents of record referred to therein. The Company will provide the Buyer with title insurance policies ("Title Policies") on or before the Closing, from the Title Insurer based upon the Title Commitments. The Company will deliver to the Title Insurer all affidavits, undertakings and other title clearance documents reasonably necessary to issue the Title Policies and endorsements thereto. Each such Title Policy will be dated as of the date of closing and (a) insure title to the applicable parcels of real estate and all recorded easements benefitting such parcels, subject only to Permitted Encumbrances, (b) contain an "extended coverage endorsement" insuring over the general exceptions contained customarily in such policies, excepting survey matters with respect to the Bog Properties, (c) with respect to the Facility Properties, contain an ALTA Zoning Endorsement 3.1, with parking (or equivalent) to the extent available in the jurisdiction in which the property is located, (d) with respect to the Facility Properties, contain an endorsement insuring that the parcel described in such Title Policy is the parcel shown on the survey delivered with respect to such parcel and a survey accuracy endorsement, (e) contain an endorsement insuring that each street adjacent to such parcel is a public street and that there is direct and unencumbered pedestrian and vehicular access to such street from such parcel, (f) with respect to the Facility Properties, if the real estate covered by such policy consists of more than one record parcel, contain a "contiguity" endorsement insuring that all of the record parcels are contiguous to one another, (g) contain a non-imputation endorsement, (h) contain a tax number endorsement and (i) contain such other endorsements as the Buyer and the Buyer's lender, if any, may reasonably request.
(xiii) The Company has procured, at its own cost and expense, in preparation for the Closing, and shall have delivered to the Buyer, current surveys or existing surveys accompanied with Affidavits of no change of each parcel of the Owned Real Property identified in Section 4(l)(i) of the Disclosure Schedule constituting a Facility Property, prepared by a licensed surveyor, satisfactory to the Buyer, and conforming to 1999 ALTA/ACSM Minimum Detail Requirements for Urban Land Title Surveys, and such standards as the Title Insurer may require as a condition to the removal of any survey exceptions from the Title Policy, and certified to the Buyer, the Buyer's lender and the Title Insurer.
(xiv) the Company and its Subsidiaries shall have obtained and delivered to the Buyer an estoppel certificate with respect to each of the Leases, dated no more than 30 days prior to the Closing Date, from the other party to such Lease, in form and substance satisfactory to the Buyer;
(xv) no damage, destruction, infestation or other change or casualty has occurred with respect to any of the Real Property or any portion thereof that, individually or in the aggregate, would have a material adverse effect on the use or occupancy of the Real Property or the operation of the business of the Company and its Subsidiaries;
(xvi) the Company shall have effected a one for four (1:4) reverse stock split of its Class A Common Stock and Class B Common Stock;
(xvii) each holder of Class B Common Stock shall have converted all of his, her or its shares of Class B Common Stock into Class A Common Stock, such that immediately following the Closing there are no issued or outstanding shares of Class B Common Stock;
(xviii) the Company shall have entered into written agreements with the vendors, suppliers or other creditors set forth on Exhibit E attached hereto, which agreements shall be in form and substance satisfactory to the Buyer in its sole discretion;
(xix) the Company's Board of Directors and / or Special Committee thereof shall have received a fairness opinion from Rabobank International;
(xx) the Company and the Buyer (or its Affiliate) shall have executed a management services agreement in form and substance satisfactory to the Buyer in its sole discretion;
(xxi) since August 31, 2001, no change, occurrence or development with respect to the Company or its Subsidiaries that was not disclosed in the SEC Documents filed prior to the date of this Agreement or in the Disclosure Schedule shall have occurred or become known to the Buyer that has had or could reasonably be expected to have a material adverse effect on the Company's or any of its Subsidiaries' business, properties, assets, results, operations, or conditions (financial or other), either alone or in the aggregate.
(xxii) the Management Agreement shall have been terminated;
(xxiii) the Severance and Stay Bonus Plan shall have been terminated;
(xxiv) the Buyer shall have received delivery of certificates for the Shares as set forth hereunder;
(xxv) the Company shall have obtained on terms and conditions satisfactory to the Buyer all of the financing it needs in order to consummate the transactions contemplated hereby and, together with the Cash Purchase Price, fund the working capital requirements of the Company and its Subsidiaries after the Closing;
(xxvi) the results of the Buyer's conversations with the Company's customers shall be satisfactory to the Buyer in the Buyer's sole discretion;
(xxvii) the Company's Bylaws shall have been amended in form and substance satisfactory to the Buyer in its sole discretion;
(xxviii) the Company shall have taken such action so that ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and C. ▇▇▇▇▇ ▇▇▇▇▇ shall have been appointed officers of the Company;
(xxix) the Company shall deliver to the Buyer Phase I reports for the Facility Properties satisfactory to the Buyer in the Buyer's sole discretion; and
(xxx) the Company and the other parties to the Assignment, Assumption and Release Agreements shall have executed the Assignment, Assumption and Release Agreements in form and substance satisfactory to the Buyer in its sole discretion. The Buyer may waive any condition specified in this Section 6.1 5(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Northland Cranberries Inc /Wi/)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions Transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) 1. the representations and warranties set forth in Section 3 Sections IV.A and IV.C above shall be true and correct in all material respects at and as of the Closing Date;
(d) 2. the Seller Sellers shall have performed and complied with all of its the covenants hereunder in all material respects through the Closing;
(e) 3. the Sellers shall have procured all of the third party consents specified in Section V.B above;
4. 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this AgreementTransactions, (ii) cause any of the transactions contemplated by this Agreement Transactions to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own Bit 3 Shares and to control Bit 3, or (iv) materially adversely affect the Assets right of Bit 3 to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(f) 5. the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e) VII.A.1-4 is satisfied in all material respects;
(g) 6. the Parties shall have received all authorizations, consents, and approvals of governments and governmental agencies referred to in Sections IV.A.2, IV.B.3, and IV.C.4 above;
7. the Buyer shall have received from counsel to the Sellers an opinion in form and substance mutually agreed to by the parties, addressed to the Buyer, and dated as of the Closing Date;
8. the Buyer shall have received from ▇▇▇▇▇ and Company or its other advisers, a Fairness Opinion in form and substance satisfactory to the Buyer in its sole discretion, to the effect that the Transactions will be fair and reasonable to the Buyer, and that the consideration to be granted and received by the Buyer in the Transactions is fair and reasonable to the Buyer under the circumstances of the Transactions;
9. the Buyer shall have obtained on terms and conditions commercially satisfactory to it, all of the financing it needs in order to consummate the Transactions and fund the working capital requirements of Bit 3 after the Closing. Buyer intends to acquire some or all of that financing through the Public Offering;
10. all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby Transactions and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall Transactions will be reasonably satisfactory in form and substance to the Buyer;
11. The the Buyer may waive has received any condition specified legally required approvals of its shareholders for the necessary increase in this the number of shares of the Common Stock to be issued in the Public Offering, to finance, in whole or in part, the Transactions; and
12. the Buyer has received written notice from the lessors and sublessors of all real property leased or subleased by Bit 3 as provided in Section 6.1 if it executes a writing so stating at or prior IV.C.12.e above, in form and substance reasonably satisfactory to the ClosingBuyer.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(ai) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) the The representations and warranties set forth in Section 3 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller The Sellers shall have performed and complied with all of its their covenants hereunder in all material Material respects through the Closing;
(eiii) no the Targets shall have procured all of the governmental or third party consents and approvals specified in Section 5(b) including any landlord consents related to any rental property and a consent from SAP America, Inc. relating to Targets' National Logo Partner Agreement;
(iv) No action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency within the jurisdiction of any federal, state, local, or foreign jurisdiction or before any arbitrator Governmental Authority wherein an unfavorable injunction, judgment, order, decree, rulingstipulation, injunction, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own own, operate, or control the Assets and to operate Shares or the business of Seller Targets (and no such injunction, judgment, order, decree, rulingstipulation, injunction, or charge shall be in effect);; CORESTAFF, INC. STOCK PURCHASE AGREEMENT - 38 - 44
(fv) the Seller The Sellers shall have delivered to the Buyer a certificate (without qualification as to knowledge or materiality or otherwise) to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 7(a)(i)-(iv) is satisfied in all respects;
(gvi) all actions to be taken by The Buyer shall have received from each of Terr▇ ▇▇▇▇▇▇▇ ▇▇▇l▇▇ ▇▇▇ Kevi▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇ executed employment agreement in the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall be satisfactory in form and substance attached hereto as Exhibit B;
(vii) The Buyer shall have received from each of Terr▇ ▇▇▇▇▇▇▇ ▇▇▇l▇▇ ▇▇▇ Kevi▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇ executed non-competition agreement in the form and substance attached hereto as Exhibit C;
(viii) The Buyer shall have received from counsel to the Sellers an opinion with respect to the matters set forth in Exhibit D attached hereto, addressed to the Buyer and dated as of the Closing Date;
(ix) The Buyer shall have received the resignations, effective as of the Closing, of each director of the Targets designated by Buyer prior to the Closing;
(x) All officers, directors of the Targets and each of the Sellers shall have repaid in full all debts or other obligations, if any, owed by them to the Targets;
(xi) No Material adverse change shall have occurred before the Closing in Targets' business or their future business prospects;
(xii) All appropriate consents and shareholder authorizations of Targets shall have been obtained;
(xiii) The Buyer shall be satisfied that at Closing all facilities of the Targets are under legal, valid and binding leases or subleases, each of which have received all approvals of governmental authorities;
(xiv) Sellers shall have delivered to Buyer stock certificates evidencing all of the stock of the Targets in good delivery form and duly endorsed for transfer or accompanied by duly executed stock power or other appropriate assignment documents;
(xv) The Sellers shall have caused to be cancelled and the Targets shall have cancelled any stock options, deferred bonus programs, and phantom equity plans CORESTAFF, INC. STOCK PURCHASE AGREEMENT - 39 - 45 outstanding as of the Closing Date, at no cost to Buyer. Sellers shall have fully assumed all liabilities relating to the Target's 1997 Contingent Bonus Plan. Buyer shall be satisfied in its sole reasonable good faith discretion with existing non-compete arrangements with Targets' employees and with the existing employment arrangements with Targets' employees, including arrangements between the Target's employees and Terr▇ ▇▇▇▇▇▇▇ ▇▇▇l▇▇ ▇▇▇ Kevi▇ ▇▇▇▇▇▇▇▇▇;
(xvi) All liens and security interests securing debts of the Targets which have been paid in full prior to or at the Closing shall have been fully released of record to the reasonable satisfaction of the Buyer and all Uniform Commercial Code financing statements or other filings of any kind whatsoever, covering or evidencing such debts, liens and/or security interests shall have been terminated;
(xvii) No unsatisfied liens for the failure to pay Taxes of any nature whatsoever shall exist against the Targets, or against or in any way affecting any of the Shares; and
(xviii) All deferred taxes of the Targets and all other tax related issues of the Targets shall have been accrued and/or discharged by the Targets (except for income Taxes payable by the Sellers). The Buyer may waive any condition specified in this Section 6.1 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to ------------------------------------- consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its covenants hereunder in all material respects with all of their covenants hereunder through the Closing;
(eiii) the Company and its Subsidiaries shall have procured all of the third party consents specified in Section 5(b) above, all of the title insurance commitments, policies, and riders specified in Section 5(h) above, and all of the Surveys specified in Section 5(i) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Company Shares and to control the Company and its Subsidiaries, or (D) affect adversely the right of any of the Company and its Subsidiaries to own its assets and to operate the business of Seller its Businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 7(a)(i)-(iv) is satisfied in all respects;
(gvi) all actions applicable waiting periods (and any extensions thereof) under the HSR Act shall have expired or otherwise been terminated and the Parties, the Company, and its Subsidiaries shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to be taken in Section 3(a)(ii), Section 3(b)(ii), and Section 4(c) above;
(vii) all applicable consents, permits and orders required by the Seller FCC, the Georgia PSC and any other governmental authority shall have been obtained and become final;
(viii) the relevant parties shall have entered into Noncompetition. Agreements and the same shall be in connection with consummation full force and effect;
(ix) Buyer shall have received from counsel to Sellers an opinion in form and substance as set forth in Exhibit D attached hereto, addressed to Buyer, and dated as of the Closing Date;
(x) Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Company and its Subsidiaries;
(xi) Buyer shall have obtained from the Rural Telephone Finance Cooperative or other institutional lender, on terms and conditions satisfactory to it in its sole discretion, all of the financing it needs in order to consummate the transactions contemplated hereby and all certificates, opinions, instruments, fund the working capital requirements of the Company and other documents required to effect the transactions contemplated hereby shall be satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to its Subsidiaries after the Closing;
(xii) at the Closing, the Company shall have no less than Four Million Dollars ($4,000,000) in readily-available cash, a minimum net worth of Nine Million Dollars ($9,000,000) and a minimum current ratio of 1.
Appears in 1 contract
Sources: Contribution and Stock Purchase Agreement (Madison River Capital LLC)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 53(a) and 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(eiii) Furash shall have procured all of the material third party consents specified in 5(b) above.
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own Furash Shares and to control Furash, or (D) affect materially and adversely the Assets right of Furash to own its assets and to operate the its business of Seller (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e7(a)(i)-(iv) is satisfied in all respects;
; (gvi) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby relevant parties shall be satisfactory have entered into side agreements in form and substance to as set forth in Exhibits B- 1 and B-2 attached hereto and the Buyer. The Buyer may waive any condition specified same shall be in this Section 6.1 if it executes a writing so stating at or prior to the Closing.full force and effect;
Appears in 1 contract
Sources: Stock Purchase Agreement (Headway Corporate Resources Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) 7.1.1 the representations and warranties set forth in Section 3 Paragraph 3.1 and Paragraph 4 above shall be true and correct in all material respects at and as of the Closing Date;; and there shall have been, between the Most Recent Balance Sheet Date and the Closing Date, no material adverse change in the condition, financial or otherwise of the Company; the assets, liabilities and income statements being in substantially the same condition as is reflected in the Most Recent Balance Sheet Date and in the event there is an adverse change, at the sole and exclusive option of Buyer, this Agreement shall be null and void.
(d) 7.1.2 the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the ClosingClosing Date;
(e) 7.1.3 the Company shall have obtained all the necessary third party consents before the closing Date;
7.1.4 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, rulingstipulation, injunction, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely either the Company or the right of the Buyer to own own, operate, or control the Assets and to operate Company shares or the business of Seller Company (and no such injunction, judgment, order, decree, rulingstipulation, injunction, or charge shall be in effect);
(f) 7.1.5 the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e) Paragraph 7.1, 7.
1.1 to 7.1.4 is satisfied in all respects;
(g) all actions 7.1.6 the Buyer shall have received from counsel to be taken by the Seller Sellers an opinion with respect to the matters set forth in connection with consummation Exhibit D attached hereto, addressed to the Buyer and dated as of the transactions contemplated hereby Closing Date;
7.1.7 the Buyer shall have received the resignations, effective as of the closing, of each director and all certificatesofficer of the Company, opinions, instruments, and other documents required to effect than ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ as President;
7.1.8 the transactions contemplated hereby Buyer shall be satisfactory have received releases (in form and substance satisfactory to Buyer) executed by the Sellers and each director and officer of the Company releasing any and all claims by such persons against the Company;
7.1.9 the Sellers shall have delivered to the Company assignments (in form and substance reasonably satisfactory to the Buyer) executed by the Sellers assigning any and all rights of the Sellers in Intellectual Property owned or used by the Company; and
7.1.10 the Sellers shall deliver a Disclosure Schedule which Sellers shall represent and warrant sets forth the following information with respect to the Company: (A) the basis of the Company in its assets; and (B) the amount of any net operating loss, net capital loss, unused investment or other credit, unused foreign tax, or excess charitable contribution allocable to the Company. The Buyer may waive any condition specified in this Section 6.1 Paragraph 7.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Wade Cook Financial Corp)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditionsconditions as of the Closing:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) the representations and warranties set forth in Section 3 above SECTION 3.1 and SECTION 4 shall be true and correct in all material respects at and as of the Closing Date;
(db) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(ec) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Assets Company Shares and to control the Company and the Subsidiary, or (iv) affect adversely the right of the Company or the Subsidiary to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fd) the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(aSECTIONS 6.1(a)-(c) -(e) is are satisfied in all respects;
(e) the Parties, the Company and the Subsidiary shall have received all authorizations, consents, and approvals of governments and governmental agencies referred to in SECTION 3.1(a), SECTION 3.2(b), and SECTION 4.3;
(f) the relevant parties shall have entered into the Short Term Notes, the Long Term Notes, and the Warrant Agreements and the same shall be in full force and effect;
(g) all actions to be taken by the Seller in connection with consummation of relevant parties shall have entered into the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect Registration Rights Agreement (the transactions contemplated hereby shall be satisfactory "REGISTRATION RIGHTS AGREEMENT") in form and substance to as set forth on EXHIBIT F attached hereto and the Buyer. The same shall be in full force and effect;
(h) the Sellers, M▇▇▇▇▇▇▇▇ and Y▇▇▇ shall each have entered into a Lock-Up Agreement (collectively, the "LOCK-UP AGREEMENTS") with the Buyer may waive any condition specified covering the resale of each such holder of the Buyer Shares in this Section 6.1 if it executes a writing so stating at or prior to form and substance as set forth in EXHIBIT G attached hereto and the Closing.same shall be in full force and effect;
Appears in 1 contract
Sources: Stock Purchase Agreement (Microtel International Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 §3(a) and §4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(eiii) the Target and its Subsidiaries shall have procured all of the third party consents specified in §5(b) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Target Shares and to control the Target and its Subsidiaries, or (D) affect adversely the right of any of the Target and its Subsidiaries to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e§7(a)(i)-(iv) is satisfied in all respects;
(gvi) each of the Sellers and the Buyer shall have entered into the Employment Agreements attached hereto as Exhibits C-1 and C-2 and the same shall be in full force and effect; and
(vii) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 §7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 (S) 3(a) and (S) 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) each of the Seller Sellers shall have performed and complied with all of its his or her covenants hereunder in all material respects through the Closing;
(eiii) the Company shall have procured all of the third party consents specified in (S) 5(b) above including, without limitation, any required consent of the Company's landlords and sublandlords with respect to each of the Store Leases;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would would:
(iA) prevent consummation of any of the transactions contemplated contem plated by this Agreement, ;
(iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or ;
(iiiC) affect adversely the right of the Buyer to own the Assets Company Shares and to control the Company and each Subsidiary; or
(D) affect adversely the right of the Company and each Subsidiary to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) each of the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a(S) -(e7(a)(i)-(iv) is satisfied in all respects;
(gvi) the Parties and the Company shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in (S) 3(a)(ii), (S) 3(b)(ii), and (S) 4(c) above;
(vii) the Buyer shall have received from counsel to the Sellers an opinion substantially in the form set forth in Exhibit F attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(viii) at least five (5) business days prior to the Closing, the Buyer shall have received the resignations, effective as of the Closing, of each of the Company's and the Subsidiaries' respective directors and the officers set forth on (S)(S) 4(a) and (b) of the Disclosure Schedule;
(ix) the Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby;
(x) the Buyer's due diligence investigation of the Sellers, the Company and each Subsidiary shall have been completed to the Buyer's satisfaction, and the results of such due diligence investigation shall be acceptable to the Buyer in its sole discretion;
(xi) the Parties and the Company's creditors shall have agreed with regard to the payment or assumption of the Company Debt or any of its components, and the release of encumbrances covering the assets and/or capital stock of the Company and/or the Subsidiaries;
(xii) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer;
(xiii) [intentionally blank];
(xiv) the Buyer shall have determined in its sole discretion that there is no unacceptable material conflict between the respective development areas of the Company, the Subsidiaries and the Buyer;
(xv) all voting trusts, proxies and other agreements or understandings with respect to the voting of the capital stock of the Company shall have been terminated before the Closing;
(xvi) the conversion of the Preferred Shares to Common Shares, as described in (S)(S) 3(a)(v) and 4(b) above, shall have occurred, and before the Closing there shall be no issued or outstanding Preferred Shares;
(xvii) the Options shall have been cancelled, and all obligations of the Company thereunder shall have been forever terminated. The Buyer may waive any condition specified in this Section 6.1 (S) 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:: 35
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(eiii) the Sellers, the Company and its Subsidiaries shall have procured all of the third party consents specified in Section 5(b) above to be procured by them, including but not limited to obtaining the appropriate waivers of change in control provisions from landlords of real property leased by the Company in Chemnitz and Gemering, Germany;
(iv) 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 Governmental Body or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Company Shares and to control the Company and its Subsidiaries, or (D) affect adversely the right of any of the Company and its Subsidiaries to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 7(a)(i)-(iv) is satisfied in all respects;
(gvi) the Parties, the Company, and its Subsidiaries shall have received all authorizations, consents, and approvals of Governmental Bodies referred to in Section 3(a)(ii)-(iii), Section 3(b)(ii)-(iii), and Section 4(d) above;
(vii) each of Werner Dreesbach and Chris▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ll ▇▇▇▇ ▇▇▇▇ ▇▇▇minated their respective employment agreements with the Company, without liability of the Company or the Buyer, and shall have entered into a written employment agreement with the Company on terms and conditions consistent with this Agreement and mutually satisfactory to the Parties (each, an "Employment Agreement") and the same shall be in full force and effect;
(viii) substantially all of the twenty (20) top key employees of the Company (as mutually determined by the Parties prior to the Closing) shall have entered into employment arrangements, satisfactory to the Buyer, on terms and conditions substantially the same as those terms, conditions, and compensation currently enjoyed by such key employees;
(ix) each of the Individual Sellers shall have initially pledged sixty-five percent (65%) of the Buyer Common Stock issued to such Seller at the Closing to secure his or her indemnification obligations under Section 8 pursuant to a separate agreement (the "Lock-Up and Pledge Agreement") with the Buyer in form and substance as set forth in Exhibit C, and the same shall be in full force and effect;
(x) Sellers shall have duly signed the Notarial Deed;
(xi) the Buyer shall have completed its due diligence investigation, the results of which 36 shall be reasonably satisfactory to the Buyer and which investigation shall not have disclosed any material adverse event, condition or facts with respect to the Company, its business, assets, financial condition or prospects not already fully reflected in the Financial Statements and the Disclosure Schedule;
(xii) the Buyer's independent accountants shall have advised the Buyer regarding the accounting treatment of the transactions contemplated by this Agreement, which shall be satisfactory to the Buyer in its discretion;
(xiii) the Buyer shall have received an affirmative fairness opinion from Wessels, Arnold & Henderson r▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇fac▇▇▇▇ ▇▇ ▇he Buyer and its Board of Directors;
(xiv) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Company and its Subsidiaries other than those whom the Buyer shall have specified in writing to Sellers at least ten (10) business days prior to the Closing Date;
(xv) the Buyer's Board of Directors shall have formally approved and authorized the Closing of the transactions contemplated by this Agreement;
(xvi) the Buyer shall have received opinions from German, United Kingdom and United States counsel to the Sellers, in form and substance reasonably satisfactory to Buyer, addressed to the Buyer, and dated as of the Closing Date;
(xvii) the Buyer shall have received the Converted Financial Statements at least ten days prior to the Closing Date;
(xviii) the Buyer shall have received from Sellers, no later than 5:00 p.m. (Phoenix, Arizona time) on November 19, 1996, the Commitment Schedule.
(xix) no material adverse change in the business, financial condition or prospects of the Company and the Subsidiaries, taken as a whole, shall have occurred from September 30, 1996 through the Closing Date; and
(xx) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) 6.1.1 the representations and warranties set forth in Section 3 3.1 and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(d) 6.1.2 the Seller shall have performed and complied with all of its his covenants hereunder in all material respects through the Closing;
(e) 6.1.3 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Assets Subject Shares and to control the Company, or (iv) affect adversely the right of the Company to own its assets and to operate the its business of Seller (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(f) 6.1.4 the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e) Section 6.1.1 through 6.1.3 is satisfied in all respects;
(g) 6.1.5 the Company shall have received all authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3.1.2, Section 3.2.3, and Section 4.3 above;
6.1.6 the Seller shall have delivered or caused to be delivered to the Buyer stock certificates representing the Subject Shares, endorsed in blank or accompanied by duly executed assignment documents;
6.1.7 the Seller shall have entered into the Subscription and Registration Rights Agreement & Stockholder's Certificate with the Buyer substantially in the form set forth in Exhibit A attached hereto and the same shall be in full force and effect;
6.1.8 Seller shall have entered into an Employment Agreement with the Buyer substantially in the form set forth in Exhibit C attached hereto and the same shall be in full force and effect;
6.1.9 the Buyer shall have received from counsel to the Seller an opinion in form and substance as set forth in Exhibit D attached hereto, addressed to the Buyer, and dated as of the Closing Date;
6.1.10 the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Company other than those whom the Buyer shall have specified in writing prior to the Closing;
6.1.11 the Buyer shall have received all corporate books and records of the Company; and
6.1.12 all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer BUYER to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) WHOODOO and the Seller SHAREHOLDERS shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(eiii) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, Agreement or (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Assets and to operate the business of Seller consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fiv) WHOODOO and/or the Seller SHAREHOLDERS have delivered to BUYER and/or HINES those documents or items required to be delive▇▇▇.
(v) WHOODOO shall have delivered to the Buyer BUYER and HINES a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 7(b)(i)-(iv) is satisfied in all respects;; and
(gvi) all actions to be taken by WHOODOO and the Seller SHAREHOLDERS in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the BuyerBUYER. The Buyer BUYER and HINES may waive any condition specified in this Section 6.1 if it executes 7(b) ▇▇ ▇▇ey each execute a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Whoodoo Com Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3(a) and 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) each of the Seller Sellers shall have performed and complied with all of its his or her covenants hereunder in all material respects through the Closing;
(eiii) the Company shall have procured all of the third party consents specified in 5(b) above including without limitation, consent of each of the Company's landlords and GACC with respect to each of the Store Leases (including those listed on 4(c) of the Disclosure Schedule), all of which shall be satisfactory to the Buyer;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would would
(iA) prevent consummation of any of the transactions contemplated by this Agreement, ;
(iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or ;
(iiiC) affect adversely the right of the Buyer to own the Assets Company Shares and to control the Company; or
(D) affect adversely the right of the Company to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) each of the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a7(a)(i)-(iv) -(e) above is satisfied in all respects;
(gvi) the Parties and the Company shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in 3(a)(ii), 3(b)(ii), and 4(c) above;
(vii) the Buyer shall have received from counsel to the Sellers an opinion substantially in the form set forth in Exhibit E attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(viii) at least five (5) business days prior to the Closing, the Buyer shall have received the resignations, effective as of the Closing, of the Company's directors and the officers set forth on 7(a)(viii) of the Disclosure Schedule;
(ix) the Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and the Related Transactions;
(x) the closing of each of the Related Transactions shall have occurred, or each of the conditions for the closing of the Related Transactions concurrently with the Closing of the transactions contemplated by this Agreement shall have been satisfied or waived to the Buyer's satisfaction;
(xi) the Franchisee Litigation shall have been settled upon terms and dismissed with prejudice and on the merits pursuant to documents executed and satisfactory to the Buyer;
(xii) the Buyer's due diligence investigation of the Sellers and the Company shall have been completed to the Buyer's satisfaction;
(xiii) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby hereby, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall hereby, will be reasonably satisfactory in form and substance to the Buyer;
(xiv) the capital stock of AFGG, Inc. shall have been transferred by the Company to ▇▇▇▇▇ or his designee pursuant to instruments satisfactory to the Buyer;
(xv) all voting trusts, proxies and other agreements or understandings with respect to the voting of the capital stock of the Company shall have been terminated before the Closing;
(xvi) the Sellers shall deliver to the Buyer stock certificates representing all of the issued and outstanding Company Shares, endorsed in blank or accompanied by duly executed assignment documents;
(xvii) the Company and ▇▇▇▇▇ shall have entered into an agreement with the landlord under the Office Suite Lease, satisfactory to the Buyer, removing the Company as a party thereto, providing for the release of the Company from all past and future duties, obligations and liabilities thereunder, and providing for the Buyer's use of two offices without charge to the Buyer as mutually agreed therein for the lesser of a period of one year after the Closing Date or so long as ▇▇▇▇▇ or an Affiliate of ▇▇▇▇▇ is a tenant thereunder; and
(xviii) the Company and the Sellers shall deliver the stock book, stock ledger, minute book, and corporate seal of the Company. The Buyer may waive any condition specified in this Section 6.1 7(a) if it executes a writing so stating at or prior to the Closing. Notwithstanding the foregoing, the Parties agree that the satisfaction of the conditions at the Closing set forth in 7(a)(iii), (x), and (xi), and the Closing of the transactions contemplated by this Agreement are intended to occur simultaneously. Therefore, if all of the conditions set forth in this section 7(a) (other than those set forth in 7(a)(iii), (x) and (xi)) are satisfied at the Pre-Closing and remain satisfied through the Closing, then all conditions set forth in this 7(a) shall be deemed to have been satisfied when the conditions in 7(a)(iii), (x), and (xi) have been satisfied.
Appears in 1 contract
Sources: Stock Purchase Agreement (Fields MRS Original Cookies Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 (S) 3(a) and (S) 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) each of the Seller Sellers shall have performed and complied with all of its his or her covenants hereunder in all material respects through the Closing;
(eiii) the Company shall have procured all of the third party consents specified in (S) 5(b) above including, without limitation, any required consent of the Company's landlords and sublandlords with respect to each of the Store Leases;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would would:
(iA) prevent consummation of any of the transactions contemplated by this Agreement, ;
(iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or ;
(iiiC) affect adversely the right of the Buyer to own the Assets Company Shares and to control the Company and each Subsidiary; or
(D) affect adversely the right of the Company and each Subsidiary to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) each of the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a(S) -(e7(a)(i)-(iv) is satisfied in all respects;
(gvi) the Parties and the Company shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in (S) 3(a)(ii), (S) 3(b)(ii), and (S) 4(c) above;
(vii) the Buyer shall have received from counsel to the Sellers an opinion substantially in the form set forth in Exhibit F attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(viii) at least five (5) business days prior to the Closing, the Buyer shall have received the resignations, effective as of the Closing, of each of the Company's and the Subsidiaries' respective directors and the officers set forth on (S)(S) 4(a) and (b) of the Disclosure Schedule;
(ix) the Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby;
(x) the Buyer's due diligence investigation of the Sellers, the Company and each Subsidiary shall have been completed to the Buyer's satisfaction, and the results of such due diligence investigation shall be acceptable to the Buyer in its sole discretion;
(xi) the Parties and the Company's creditors shall have agreed with regard to the payment or assumption of the Company Debt or any of its components, and the release of encumbrances covering the assets and/or capital stock of the Company and/or the Subsidiaries;
(xii) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer;
(xiii) [intentionally blank];
(xiv) the Buyer shall have determined in its sole discretion that there is no unacceptable material conflict between the respective development areas of the Company, the Subsidiaries and the Buyer;
(xv) all voting trusts, proxies and other agreements or understandings with respect to the voting of the capital stock of the Company shall have been terminated before the Closing;
(xvi) the conversion of the Preferred Shares to Common Shares, as described in (S)(S) 3(a)(v) and 4(b) above, shall have occurred, and before the Closing there shall be no issued or outstanding Preferred Shares;
(xvii) the Options shall have been cancelled, and all obligations of the Company thereunder shall have been forever terminated. The Buyer may waive any condition specified in this Section 6.1 (S) 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Fields MRS Original Cookies Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 (S)3(a) and (S)4 above shall be true true, correct and correct complete in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
iii) Antrum and the Sellers shall have procured all of the third party consents specified in (eS)5(b) above;
iv) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, provincial, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Antrum Shares and to control Antrum, or (D) affect adversely the right of Antrum to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e(S)7(a)(i)-(iv) is satisfied in all respects;
(gvi) all actions to be taken by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have executed and delivered the Seller in connection with consummation of the transactions contemplated hereby employment and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall be satisfactory noncompetition agreement in form and substance to as set forth on Exhibit B attached hereto and the Buyer. The same shall be in full force and effect (the "Employment Agreement");
vii) the Board of Directors and shareholders of Buyer may waive any condition specified in shall have approved and authorized the execution, delivery and performance of this Section 6.1 if it executes a writing so stating at or prior to Agreement and the Closing.other agreements, instruments and documents contemplated hereby;
Appears in 1 contract
Sources: Stock Purchase Agreement (JPM Co)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3.1 above shall be true and correct in all material respects when made and at and as of the Closing Date;
(dii) the Seller shall have performed and complied in all material respects with all of its covenants to be performed or complied with hereunder in all material respects through on or before the Closing;
(eiii) the Seller shall have procured all of the authorizations, third party consents and approvals required to be obtained by it pursuant to Section 4.1(b) hereof (except with respect to Restricted Contracts), which shall be on terms that will not result in any material economic cost to Buyer, other than consents with respect to Material Contracts the failure to obtain which consents shall not, taken as a whole, result in a Material Adverse Effect;
(iv) no events or conditions shall have occurred which individually or in the aggregate, have had, or may reasonably be anticipated by the Buyer, to give rise to any Material Adverse Effect.
(v) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own acquire the Assets and to operate the business of Seller (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect)Transfer Agency Assets;
(fA) the Seller shall have entered into (1) the Assignment of Rockland Lease, (2) a termination of the Federated Funds TA Agreement, (3) an amendment to each Proprietary Funds TA Agreement that is fashioned as a Bundled Services Agreement, (4) an assignment of each Proprietary Funds TA Agreement that is not fashioned as a Bundled Services Agreement, (5) an Assignment of Contracts with respect to all Material Contracts, subject to sub-Section (iii) above, (6) the License Agreement, (7) the Sub-Contracts, (8) a ▇▇▇▇ of sale with respect to all other Transfer Agency Assets other than the Excluded Assets, and (9) a letter agreement setting forth the terms on which the Shared Resource will be made available and (B) the Proprietary Funds with a Bundled Services Agreement shall have each entered into a duly authorized and approved New Proprietary Funds TA Agreement;
(vii) the Board of Directors/Trustees of the Federated Funds shall have duly authorized and approved the New TA Agreement and the Federated Funds shall have entered into the New TA Agreement;
(viii) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(aSection 5(a)(i) -(ethrough (vii) is satisfied in all respects;; and
(gix) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer.
(x) Seller shall have delivered to Buyer the following:
(1) a copy of the resolutions duly and validly adopted by the Board of Directors of Seller authorizing the execution, delivery and performance of this Agreement by Seller, certified by the Secretary or an Assistant Secretary of Seller as being in full force and effect as of the Closing; (2) certified copies of the charter and bylaws of Seller as in full force and effect as of the Closing; (3) a certificate issued by the Secretary of State or other similar appropriate governmental department, as of a date not more than thirty (30) days prior to the Closing, as to the good standing of the Seller in its state of incorporation; and (4) a certificate of the Secretary or an Assistant Secretary of Seller as to the incumbency and signatures of the officers of Seller executing this Agreement and any other documents delivered by Seller at Closing; and
(B) all of the Books and Records; and
(C) such other documents and instruments as the Buyer or its counsel may reasonably request; provided, however, that it is expressly acknowledged and agreed that opinions of counsel will not be required or requested. The Buyer may waive any condition specified in this Section 6.1 5(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Federated Investors Inc /Pa/)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth of the Seller contained in Section 3 above shall Sections 3(a) and 4 must be true and correct in all material respects at (without giving effect to any supplement to the Schedules, any qualification as to materiality, Material Adverse Effect, Knowledge, awareness or concepts of similar import, or any qualification or limitation as to monetary amount or value, except with respect to (A) the Non-Operated Cotenancies, (B) the representations and warranties in Section 4(c)(ii) and (C) the representations and warranties in Section 4(d)(iii) with respect to latent defects, for which in each such case qualifications as to Knowledge shall be given effect) as of the date of this Agreement and at Closing Date(except for those which refer to a specific date, which must be true and correct as of such date);
(dii) the Seller shall must have performed and complied with all of its covenants hereunder in all material respects with its covenants hereunder through the ClosingClosing (without giving effect to any supplement to the Schedules, any qualification as to materiality, Material Adverse Effect, Knowledge, awareness or concepts of similar import, or any qualification or limitation as to monetary amount or value);
(eiii) no action, suit, or proceeding shall there must not be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent in effect preventing consummation of any of the transactions contemplated by this Agreement, (ii) cause Agreement or any suit or action pending by a Governmental Authority to enjoin the consummation of any of the transactions transactions, contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Assets and to operate the business of Seller (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect)Agreement;
(fiv) the Seller shall must have obtained all material Governmental Authority and third party consents, including any material consents specified in Sections 3(a)(ii), 3(a)(iii), and 4(b) and including the corresponding Schedules;
(v) the Seller must have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e7(a)(i)-(iv) is satisfied in all respects;
(gvi) all actions the FTC must have approved the transactions contemplated hereunder;
(vii) the Closing Date shall be no earlier than March 28, 2002;
(viii) The Buyer shall have received financing for the transactions contemplated herein satisfactory to be taken the Buyer;
(ix) the Board of Directors of the General Partner shall have received a fairness opinion acceptable to such Board (in its sole discretion) from UBS Warburg LLC or any other financial advisor acceptable to such Board (in its sole discretion) with respect to the transactions contemplated herein;
(x) the transactions contemplated herein shall have been approved by at least a majority of the Seller in connection with consummation members of each of (1) of the Board of Directors of the General Partner, (2) the independent members of the Board of Directors of the General Partner and (3) the Special Committee of the Board of Directors of the General Partner responsible for reviewing such transactions;
(xi) EPFS Holding and the Buyer must have executed and delivered the Contribution Agreement and the closing of the transactions contemplated hereby therein must have occurred; and
(xii) The Buyer and all certificates, opinions, instruments, El Paso Production must have executed and other documents required to effect delivered the Prince PSA and the closing of the transactions contemplated hereby shall be satisfactory in form and substance to the Buyertherein must have occurred. The Buyer may waive any condition specified in this Section 6.1 7(a) if it executes a writing so stating at or prior to before the Closing.
Appears in 1 contract
Sources: Acquisition Agreement
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) i. the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date;
(d) ii. the Seller Target shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(e) iii. 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer Surviving Corporation to own the Assets former assets and to operate the business of Seller (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect)former businesses;
(f) iv. the Seller Target shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 6(a)(i)-(iii) is satisfied in all respects;
(g) v. this Agreement and the Merger shall have received the Requisite Target Shareholder Approval;
vi. there shall be no Dissenting Shares;
vii. the Parties shall have executed and delivered a Put Option Agreement substantially in the form of Exhibit A hereto;
viii. Buyer and each of Martin Jay Ryerse, Steven L. Ry▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇s▇▇▇▇ ▇▇▇▇l have exe▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇red Employment Agreements substantially in the form and with the terms set forth in Exhibit B hereto;
ix. Buyer and Eclipse Computer Systems, Inc. shall have entered into a Lease Agreement substantially in the form and with the terms set forth in Exhibit C hereto with regard to certain personal property of Eclipse Computer Systems, Inc.;
x. Buyer shall have received a Bill of Sale in form acceptable ▇▇ Buyer from Sungard for certain equipment located in the Atlanta data center leased by Buyer;
xi. Buyer shall have received a Waiver and Consent substantially in the form of Exhibit D from Eclipse Computer Systems, Inc. and eAtlanta, Inc. regarding Nucleus' possible solicitation and hiring of their employees;
xii. Buyer shall have receive a Indemnity Agreement substantially in the form of Exhibit E hereto from Eclipse Computer Systems, Inc. and eAtlanta, Inc.;
xiii. the Parties shall have executed and delivered a Registration Rights Agreement substantially in the form of Exhibit F hereto;
xiv. all actions to be taken by the Seller Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Buyer. ; The Buyer may waive any condition specified in this Section 6.1 6 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 ss.2(a) and ss.3 (b) above shall be true and correct in all material respects at and as of the Closing Datedate;
(dii) the Seller shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(eiii) the Target shall have procured all of the third party consents specified inss.4(b) above;
(iv) no action, suit, action or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would would
(iA) prevent consummation of any of the transactions contemplated by this Agreement, ,
(iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or ,
(iiiC) affect adversely the right of the Buyer to own the Assets Target Shares and to control the Target, or
(D) affect materially and adversely the right of the Target to own its assets and to operate its businesses;
(v) the business Parties and the Target shall have received all material authorizations, consents, and approvals of Seller (governments and no such injunctiongovernmental agencies necessary for this transaction, judgment, order, decree, ruling, or charge shall be as well as the Intellectual Property as defined in effectss.3(b)(xi);
(fvi) the Seller relevant parties shall have delivered to entered into the Buyer a certificate to Supply & Services Agreement in form and substance as set forth in EXHIBIT IV attached hereto and the effect that each of the conditions specified above same shall be in Sections 6.1(a) -(e) is satisfied in all respectsfull force and effect;
(gvii) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 .
(a) if it executes a writing so stating at or prior to the Closing.
(viii) no material adverse change to the business or affairs of the Target has been occurred.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) the representations and warranties set forth in Section 3 3.1 and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(db) the Seller shall have performed and complied with all of its his covenants hereunder in all material respects through the Closing;
(ec) the Company shall have procured all of the third party consents specified in Section 5.2 above.
(d) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Assets Company Shares and to control the Company , or (iv) affect adversely the right of the Company to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(e) no material adverse change in the business operations, affairs, prospects, properties, assets, existing or potential liabilities, obligations, profits or condition (financial or otherwise) of the Company shall have occurred;
(f) the Seller shall have delivered to the Buyer a certificate dated as of the Closing Date to the effect that each of the conditions specified in Section 7.1(a) through (e) above in Sections 6.1(a) -(e) is satisfied in all respects;
(g) the Seller and ▇▇▇▇▇ ▇▇▇ shall have entered into employment agreements with the Company substantially in the form attached hereto as Exhibits A and B. All other employment agreements with any employees of the Company shall have been terminated and be of no further force or effect;
(h) the Buyer shall have received from counsel to the Seller an opinion in form and substance as set forth in Exhibit C attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(i) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Company other than ▇▇▇▇ ▇▇▇;
(j) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified ; and
(k) the Company shall of obtained a release from its financial advisors in this Section 6.1 if it executes a writing so stating at or prior form satisfactory to the ClosingBuyer stating that that the Company has no existing or future Liability to such financial advisors with respect to any fees, commissions or other amounts payable with respect to the transactions contemplated by this Agreement;
(l) the Buyer shall have received a favorable opinion from ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., as to the fairness of consideration paid with respect to the transactions contemplated by this Agreement; and
Appears in 1 contract
Sources: Stock Purchase Agreement (Advanced Communication Systems Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) the 7.1.1 The representations and warranties set forth in Section 3 3.1 and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(d) the Seller 7.1.2 Treasure Valley shall have performed and complied with procured all of its covenants hereunder the third party consents specified in all material respects through the ClosingSection 5.2 above;
(e) 7.1.3 Except as set forth in the Disclosure Schedules 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own Treasure Valley Shares and to control Treasure Valley, or (iv) affect adversely the Assets right of Treasure Valley to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(f) the 7.1.4 The Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e) 7.1.1 through 7.1.3 is satisfied in all respects;
(g) 7.1.5 The Seller shall have delivered to Pioneer Title to hold in escrow until the Closing Date, the stock certificate or certificates representing all of the outstanding shares of Treasure Valley properly endorsed or accompanied by stock powers properly endorsed for transfer;
7.1.6 Nelson Construction sh▇▇▇ ▇▇ve entered into the Sand and Gravel Lease regarding the Boise Property substantially in the form attached hereto as Exhibit E and the same shall be in full force and effect;
7.1.7 The Seller shall have entered into the Consulting and Non-Competition Agreement with Treasure Valley substantially in the form attached hereto as Exhibit A and the same shall be in full force and effect;
7.1.8 Nelson Construction sh▇▇▇ ▇▇ve entered into the Aggregate Crushing Agreement with Treasure Valley in substantially the form attached hereto as Exhibit G and the same shall be in full force and effect;
7.1.9 The Buyer shall have received from counsel to the Seller an opinion in form and substance as set forth in Exhibit H attached hereto, addressed to the Buyer, and dated as of the Closing Date;
7.1.10 The Buyer shall have received the resignations, effective as of the Closing, of each director and officer of Treasure Valley;
7.1.11 All actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be satisfactory in form and substance to the Buyer; and
7.1.12 The Buyer shall have completed its due diligence investigation of Treasure Valley and its operations and financial condition and shall be satisfied in its discretion with such investigation and results thereof and shall have approved the disclosures made by the Seller in the Disclosure Schedules attached hereto. The Buyer may waive any condition specified in this Section 6.1 7.1 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material Material respects through the Closing;
(eiii) NMP will have procured all third party consents and given all notices required in connection with this Agreement and the transactions contemplated hereby, including without limitation all action necessary in connection with and/or the receipt of any notices to, filings with, and authorizations, consents and approvals of governments, governmental agencies, and third parties as set forth herein or in the Disclosure Schedule including any Filing required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, rulingstipulation, injunction, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets and to operate the business of Seller own, operate, or control NMP Shares or NMP (and no such injunction, judgment, order, decree, rulingstipulation, injunction, or charge shall be in effect);
(fv) the Seller NMP shall have delivered to the Buyer a certificate (without qualification as to knowledge or Materiality or otherwise) to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 7(a)(i)-(iv) is satisfied in all respects;
(gvi) all actions to be taken the acquisition by the Seller in connection with consummation Buyer of NMP Shares shall represent one hundred percent (100%) of the transactions contemplated hereby issued and outstanding capital stock of NMP and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby of such NMP Shares shall be satisfactory free and clear of any Security Interests or other liens, claims or encumbrances of any nature whatsoever;
(vii) the Sellers shall have purchased any personal use assets (e.g., automobiles) from NMP at a purchase price equal to the greater of (A) the net book value of such assets as of the Closing or (B) the outstanding Funded Indebtedness secured by such assets;
(viii) the Buyer shall have received from Sellers an executed Escrow Agreement in the form and substance set forth as Exhibit A attached hereto;
(ix) the Buyer shall have received from each Seller an executed joinder to the Stockholders Agreement in the form and substance set forth as Exhibit C attached hereto;
(x) the Buyer and NMP shall have received from ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. an executed employment agreement in the form and substance attached hereto as Exhibit E;
(xi) the Buyer shall have received from each Seller an executed joinder to the Registration Agreement in the form and substance set forth as Exhibit F attached hereto;
(xii) the Buyer shall have received the resignations, effective as of the Closing, of each director of NMP prior to the Closing and the termination in full without liability of any consulting or management agreements with Columbia Capital or its Affiliates;
(xiii) the Buyer shall be satisfied that the Net Worth of NMP on the Stub Period End equaled or exceeded $1,300,000 or an appropriate adjustment shall have been made to the Purchase Price as provided in Section 2(i);
(xiv) the Buyer shall be satisfied that the Net Service Revenues of NMP during the fiscal year ended December 31, 1997 equaled or exceeded $2,900,000 and during the six month period ended on the Stub Period End equaled or exceeded $2,100,000;
(xv) the Buyer shall be satisfied that the Adjusted EBIT of NMP during the fiscal year ended December 31, 1997 equaled or exceeded $360,000 or 12.3% of Net Service Revenues for such fiscal year and during the six month period ended on the Stub Period End equaled or exceeded $31,500 or 1.5% of Net Service Revenues for such period;
(xvi) the Buyer shall be satisfied in its sole discretion with the results of its continuing legal, financial and business due diligence investigations of NMP, all of which shall be final and completed to Buyer's satisfaction prior to Closing;
(xvii) no Material adverse change shall have occurred in NMP's Business or its future prospects;
(xviii) Sellers shall have caused NMP to cancel each outstanding phantom stock, deferred bonus or option plan, if any, and all outstanding NMP Options shall have been canceled pursuant to the Option Cancellation Agreement in the form of Exhibit I hereto;
(xix) Sellers shall have caused each party receiving Buyer's Shares under this Agreement to execute an Equity Subscription Agreement in the form of Exhibit D hereto;
(xx) all liens and Security Interests securing debts of NMP which have been paid in full prior to or at the Closing shall have been fully released of record to the reasonable satisfaction of the Buyer and all Uniform Commercial Code financing statements covering such debts shall have been terminated;
(xxi) no unsatisfied liens for the failure to pay Taxes of any nature whatsoever shall exist against NMP (other than liens for Taxes not yet due and payable and Taxes the payment of which are being contested by NMP in good faith to the extent reserved against in the Financial Statements), or against or in any way affecting any NMP Share;
(xxii) the Sellers shall and NMP shall have caused all of NMP's officers, directors and/or key employees of NMP to, have repaid in full all debts and other obligations, if any, owed to NMP;
(xxiii) the Buyer shall have received from NMP the Financial Statements;
(xxiv) all appropriate corporate and shareholder authorizations of NMP shall have been obtained;
(xxv) since December 31, 1997, NMP shall have made no dividend, consulting or other payment to the Sellers, except as set forth on Section 4(m) of the Disclosure Schedule and bonuses as set forth on Section 4(m) of the Disclosure Schedule;
(xxvi) except as set forth on the Disclosure Schedule, since December 31, 1997, NMP shall not have transferred, conveyed, disposed of and/or sold any of Material assets, except in the Ordinary Course of Business;
(xxvii) all Intellectual Property created or developed by any Seller and any other current employee of NMP that has been used historically by NMP or is being used currently by NMP (other than "work for hire" which has been developed by NMP for a customer and continues to be used by NMP in the performance of continuing services for that customer) shall be one hundred percent (100%) owned by NMP as of the Closing Date;
(xxviii) the Buyer and Newco shall have received from NMP an opinion of counsel in the form and substance set forth as Exhibit G hereto; and
(xxix) at least ninety-five percent (95%) of all shareholders of NMP shall have agreed to participate in the Merger without any dissenter's rights exercised. The Buyer may waive any condition specified in this Section 6.1 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 above and Section 5 shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(eiii) the Target shall have procured all of the third party consents specified in Section 6(b);
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Target Shares and to control the Target, or (D) affect adversely the right of the Target to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 8(a)(i)-(iv) is satisfied in all respects;
(gvi) the Parties and the Target shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Section 4(b) and Section 5(c) above;
(vii) John▇▇▇ ▇▇▇ O'Br▇▇▇ ▇▇▇ll have executed and delivered to Buyer employment agreements in the forms set forth as Exhibit B and C respectively;
(viii) the Buyer shall have received from counsel to the Sellers an opinion in form and substance as set forth in Exhibit D attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(ix) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than those whom the Buyer shall have specified in writing at least five (5) business days prior to the Closing; and
(x) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 8(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditionsconditions as of the Closing:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) the representations and warranties set forth in Section 3 above SECTION 3.1 and SECTION 4 shall be true and correct in all material respects at and as of the Closing Date;
(db) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(ec) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Assets Company Shares and to control the Company and the Subsidiary, or (iv) affect adversely the right of the Company or the Subsidiary to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fd) the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(aSECTIONS 6.1(a)-(c) -(e) is are satisfied in all respects;
(e) the Parties, the Company and the Subsidiary shall have received all authorizations, consents, and approvals of governments and governmental agencies referred to in SECTION 3.1(a), SECTION 3.2(b), and SECTION 4.3;
(f) the relevant parties shall have entered into the Short Term Notes, the Long Term Notes, and the Warrant Agreements and the same shall be in full force and effect;
(g) all actions to be taken by the Seller in connection with consummation of relevant parties shall have entered into the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect Registration Rights Agreement (the transactions contemplated hereby shall be satisfactory "REGISTRATION RIGHTS AGREEMENT") in form and substance to as set forth on EXHIBIT F attached hereto and the Buyer. The same shall be in full force and effect;
(h) the Sellers, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ shall each have entered into a Lock-Up Agreement (collectively, the "LOCK-UP AGREEMENTS") with the Buyer may waive any condition specified covering the resale of each such holder of the Buyer Shares in this Section 6.1 if it executes a writing so stating at or prior to form and substance as set forth in EXHIBIT G attached hereto and the Closing.same shall be in full force and effect;
Appears in 1 contract
Sources: Stock Purchase Agreement (Microtel International Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth of the Seller contained in Section 3 above shall Sections 3(a) and 4 must be true and correct in all material respects at (without giving effect to any supplement to the Schedules, any qualification as to materiality, Material Adverse Effect, Knowledge, awareness or concepts of similar import, or any qualification or limitation as to monetary amount or value, except with respect to (A) the Non-Operated Cotenancies, (B) the representations and warranties in Section 4(c)(ii) and (C) the representations and warranties in Section 4(d)(iii) with respect to latent defects, for which in each such case qualifications as to Knowledge shall be given effect) as of the date of this Agreement and at Closing Date(except for those which refer to a specific date, which must be true and correct as of such date);
(dii) the Seller shall must have performed and complied with all of its covenants hereunder in all material respects with its covenants hereunder through the ClosingClosing (without giving effect to any supplement to the Schedules, any qualification as to materiality, Material Adverse Effect, Knowledge, awareness or concepts of similar import, or any qualification or limitation as to monetary amount or value);
(eiii) no action, suit, or proceeding shall there must not be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent in effect preventing consummation of any of the transactions contemplated by this Agreement, (ii) cause Agreement or any suit or action pending by a Governmental Authority to enjoin the consummation of any of the transactions transactions, contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Assets and to operate the business of Seller (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect)Agreement;
(fiv) the Seller shall must have obtained all material Governmental Authority and third party consents, including any material consents specified in Sections 3(a)(ii), 3(a)(iii), and 4(b) and including the corresponding Schedules;
(v) the Seller must have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e7(a)(i)-(iv) is satisfied in all respects;
(gvi) all actions to be taken by the Seller in connection with consummation of FTC must have approved the transactions contemplated hereby and all certificateshereunder;
(vii) the Closing Date shall be no earlier than March 28, opinions, instruments, and other documents required to effect 2002;
(viii) The Buyer shall have received financing for the transactions contemplated hereby shall be herein satisfactory in form and substance to the Buyer. The Buyer may waive ;
(ix) the Board of Directors of the General Partner shall have received a fairness opinion acceptable to such Board (in its sole discretion) from UBS Warburg LLC or any condition specified other financial advisor acceptable to such Board (in this Section 6.1 if it executes a writing so stating at or prior its sole discretion) with respect to the Closing.transactions contemplated herein;
(x) the transactions contemplated herein shall have been approved by at least a majority of the members of each of (1) of the Board of Directors of the General Partner, (2) the independent members of the Board of Directors of the General Partner and (3) the Special Committee of the Board of Directors of the General Partner responsible for reviewing such transactions;
Appears in 1 contract
Sources: Purchase, Sale and Merger Agreement (El Paso Energy Partners Lp)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(ai) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) the The representations and warranties set forth in Section 3 and Section above shall be true and correct in all material respects at and as of the Closing DateDate and there shall not have occurred any Material Adverse Effect;
(dii) The Shareholders and the Seller Company shall have performed and complied with all of its his covenants hereunder in all material respects through the Closing;
(eiii) no The Company shall have procured all of the third party consents specified in Section above;
(iv) 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 jurisdiction, or before any arbitrator arbitrator, wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer Company to own the Assets its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller The Shareholders shall have delivered to the Buyer a certificate certificate, to the effect that each of the conditions specified above in Sections 6.1(a) -(e) Section through is satisfied in all respects;
(gvi) The Parties shall have received all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificatesother authorizations, opinions, instrumentsconsents, and other documents required approvals of governments and governmental agencies referred to effect in Section and Section above;
(vii) The Buyer shall have received from counsel to the transactions contemplated hereby shall be satisfactory Shareholders an opinion in form and substance as set forth in Exhibit E attached hereto, addressed to the Buyer. The Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to and dated as of the Closing.Closing Date;
(viii) Robe▇▇ ▇▇▇▇▇, ▇▇ev▇ ▇▇▇▇▇ ▇▇▇ Blay▇▇ ▇▇▇▇▇▇ ▇▇▇ll have entered into the Employment Agreements;
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 Section3(a) and Section4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(eiii) the Target shall have procured all of the material third party consents specified in Section5(b) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Target Shares and to control the Target, or (D) affect materially and adversely the right of the Target to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection7(a)(i)-(iv) is satisfied in all respects;
(gvi) the Target shall have received all material authorizations, consents, and approvals of governments and governmental agencies referred to in Section3(a)(ii), Section3(b)(ii), and Section4(c) above;
(vii) the relevant parties shall have entered into side agreements in form and substance as set forth in Exhibits B-1 through B-3 attached hereto and the same shall be in full force and effect;
(viii) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Target; and
(ix) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 Section7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 ss.3 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the each Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(eiii) each Seller shall have procured all of the third party consents specified in ss.5(b) above, all of the title insurance commitments, policies, and riders specified in ss.5(h) above, and all of the surveys specified in ss.5(i) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, consummation or (iiiC) affect adversely the right of the Buyer to own the Assets and Acquired Assets, to operate the business former businesses of Seller the Sellers (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the each Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(ess.6(a)(i)-(iv) is satisfied in all respects;
(gvi) all applicable waiting periods (and any extensions thereof) under the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇ shall have expired or otherwise been terminated and the Sellers and the Buyer shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in ss.3(c) and ss.4(c) above;
(vii) the Buyer shall have received from counsel to the Sellers an opinion in form and substance as set forth in Exhibit G attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(viii) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 .
(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Source Information Management Co)
Conditions to Obligation of the Buyer. The obligation of the Buyer ------------------------------------- to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 (S)3 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller and the Stockholders shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(eiii) the Seller and the Stockholders shall have procured all of the third party consents specified in (S)5(b) above (including, without limitation, the consents described in (S)5(b) with respect to all Government Contracts and Bids and Proposals to which the Seller is a party as of the Closing, except for the proposed novation of all such Government Contracts as soon as practicable following the Closing as described in (S)5(b) and (S)6(c) above);
(iv) no action, suit, or proceeding shall be pending or, to the Seller's Knowledge, threatened against any of the Seller or threatened the Stockholders before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would could (iA) reasonably prevent consummation of any of the transactions contemplated by this Agreement, (iiB) reasonably cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) materially affect adversely the right of the Buyer to own the Acquired Assets and or to operate the business former businesses of the Seller (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller and the Stockholders shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e(S)7(a)(i)-(iv) is satisfied in all respects;
(gvi) the Buyer shall have received from the Seller (i) a certificate of payment/good standing from the Massachusetts Commissioner of Revenue as provided M.G.L. Chapter 62C, (S)44(a), and a waiver of tax lien issued by the Massachusetts Commissioner of Revenue pursuant to M.G.L. Chapter 62C, (S)(S)51 and 52, or (ii) such other evidence of the payment of Massachusetts taxes by the Seller as shall be satisfactory to the Buyer;
(vii) the relevant parties other than the Buyer shall have entered into (i) the Escrow Agreement in the form of Exhibit A hereto and (ii) the lease agreements in the forms of Exhibits G-1 through G-3 hereto, and the same shall be in full force and effect;
(viii) each of the Stockholders shall have entered into a Consulting and Non- Competition Agreement with the Buyer in the form of Exhibit H hereto, and the same shall be in full force and effect;
(ix) the Buyer shall have received from counsel to the Seller and the Stockholders an opinion in the form of Exhibit I hereto dated as of the Closing Date;
(x) those key employees of the Seller who are identified in a letter of even date herewith from the Buyer to the Seller shall have agreed to become employed by the Buyer on the Closing Date on terms not less favorable to such employees as are currently being provided by the Seller;
(xi) the Buyer shall be reasonably satisfied based upon personal interviews under the Seller's Major Customers and Distributors (as described in (S)3(dd) hereof) that such Major Customers and Distributors intend to continue their current level of business with the Buyer after the Closing;
(xii) the Buyer shall have been able to procure product liability insurance coverage on terms satisfactory to the Buyer with respect to the products of the Seller;
(xiii) the Buyer's bank lender shall have consented to the transactions contemplated by this Agreement;
(xiv) the Seller shall have delivered to the Buyer the Articles of Amendment to the Seller's Articles of Organization described in (S)2(e) hereof; and
(xv) all actions to be taken by the Seller and the Stockholders in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 (S)7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 Sections 3(a) and 4 above shall be true true, complete and correct in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(eiii) each of the Targets shall have procured all of the third party consents specified in Section 5(b) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely have a Material Adverse Effect on the right of the Buyer to own the Assets shares of stock of the Target Corporations or the partnership interests in the Target Partnership and to control the Targets or (D) have a Material Adverse Effect on the right of any of the Targets to own its assets and to operate the its business of Seller (and no such material injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 7(a)(i)-(iv) is satisfied in all material respects;
(gvi) the Targets shall have received all material authorizations, consents, and approvals of governments and governmental agencies referred to in Sections 3(a)(ii) and (b)(ii), and 4(c) above;
(vii) Fellon and McCord shall have each ▇▇▇▇▇▇d into his respective Management Agreement with the Buyer as set forth in its final form and not subject to further negotiation in Exhibits C-1 and C-2 attached hereto and the same shall be in full force and effect;
(viii) the tangible net asset value as shown on the combined FMA and AES balance sheets as of the last day of the month prior to the month in which the Closing occurs, will not be less than the Minimum NAV.
(ix) there will not have been any Material Adverse Effect on the Targets between the date of this Agreement and the Closing;
(x) all necessary regulatory approvals, including the approvals set forth in Section 5(h) above, shall have been obtained;
(xi) the Buyer shall have received from counsel to the Sellers an opinion in form and substance reasonably acceptable to counsel for Buyer, addressed to the Buyer, and dated as of the Closing Date;
(xii) the Buyer shall have received the resignations, effective as of the Closing, of each director of the Targets other than those whom the Buyer shall have specified in writing at least five business days prior to the Closing; and
(xiii) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer.
(xiv) AES will have entered into a long term supply contract and an ISDA Agreement with Conoco. The Buyer may waive any condition specified in this Section 6.1 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(eiii) the Seller shall have, and shall have caused the Target to have, procured all of the third party consents specified in Section 5(b) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Seller's Target Shares and, together with Rheochem, Inc., a New Jersey corporation, to control the Target, or (D) affect adversely the right of the Target to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 7(a)(i)-(iv) is satisfied in all respects;
(gvi) the Seller shall have caused the termination with prejudice of that certain Shareholders' Agreement of Rheochem Manufacturing Company, Inc. dated August 27, 1985 by and among Concorde Industries, Inc., Rheochem, Inc. and Rheochem Manufacturing Co., Inc., said termination agreement to be in form and substance as set forth in Exhibit B attached hereto;
(vii) the relevant parties shall have entered into side agreements in form and substance as set forth in Exhibits C-1 through C-4 attached hereto and the same shall be in full force and effect;
(viii) the Buyer shall have received from counsel to the Seller an opinion in form and substance as set forth in Exhibit D attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(ix) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than those whom the Buyer shall have specified in writing at least five business days prior to the Closing;
(x) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be satisfactory in form and substance to the Buyer; and
(xi) the relevant parties shall have entered into that certain Amended and Restated Service Agreement For Wastewater Use and that certain Amended and Restated Rail Sidinq Agreement in form and substance as set forth in Exhibits E and F, respectively, attached hereto and the same shall be in full force and effect.
(xii) on or before June 30, 1994, Buyer shall have obtained from Rheochem, Inc., a New Jersey corporation ("Rheochem"), such documents, written agreements and/or other assurances which resolve, to the reasonable satisfaction of Buyer, any and all outstanding business issues or other matters of concern (the "Business Issues") relating to the Target Corporation which presently exist between Buyer and Rheochem. If Buyer, in its sole and absolute discretion, determines that all such Business Issues have been resolved to the Buyer's satisfaction, then Buyer shall, on or before June 24, 1994 (the "Notice Date"), so notify Seller of the same and this condition precedent shall be satisfied. If Buyer, in its sole and absolute discretion, determines that all Business Issues have not been resolved to the Buyer's satisfaction, then Buyer shall, on or before the Notice Date, so notify Seller of the same and this condition precedent shall have failed and thereafter this Agreement shall terminate and be null and void and of no further force or effect, and neither Buyer or Seller shall have any further duties, liabilities or obligations to the other party hereunder. If Buyer fails to notify Seller on or before the Notice Date that either the Business Issues have been resolved or have not been resolved, Buyer shall be deemed to have notified the Seller on or before the Notice Date that said Business Issues have not been resolved and thereafter this Agreement shall terminate and be null and void and of no further force or effect, and neither Buyer or Seller shall have any further duties, liabilities or obligations to the other party hereunder. The Buyer may waive any condition specified in this Section 6.1 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(ai) this Agreement and the transactions contemplated under this Agreement Merger shall have received the Requisite Shareholder Approvalapproval of the shareholders of the Company, as described in Section 5(c) above, and the number of Dissenting Shares shall not exceed five percent (5%) of the number of outstanding Company Shares;
(bii) the Seller Company and the Company Stockholders shall have procured all of the third party Consents consents specified in Section 5.2 5(b) above;
(ciii) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date;
(div) the Seller Company and the Company Stockholders shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(ev) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer Surviving Corporation to own the Assets former assets, and to operate the business former businesses of Seller the Company (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fvi) the Seller Parties shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Section 5(c);
(vii) the Company and the Company Stockholders shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 6(a)(i)-(vi) is satisfied in all respects;
(gviii) this Agreement shall have received the requisite Buyer approval;
(ix) the Buyer shall have received from counsel to the Company an opinion in form and substance as set forth in Exhibit E attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(x) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Company, other than those whom the Buyer shall have specified in writing at least five (5) business days prior to the Closing; and
(xi) all actions to be taken by the Seller Company Stockholders in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller Sellers shall have performed and complied with all of its their respective covenants hereunder in all material respects through the Closing;
(eiii) if applicable, the Parties, and each of the Companies, shall have received all authorizations, consents, and approvals of all governmental entities (including governmental agencies) referred to in Section 3(a)(i), Section 3(b)(ii), and Section 4(c) with jurisdiction over the Companies;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Target Shares and/or the Affiliate Equity except as reflected on Schedule 3(a)(i), and to control the Companies, or (D) affect adversely the right of any of the Companies to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(e7(a)(i)-(iv) is satisfied in all respects;
(gvi) the Buyer shall have received from counsel to the Sellers an opinion in form and substance as set forth in Exhibit "A" attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(vii) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Companies other than those whom the Buyer shall have specified in writing at least five business days prior to the Closing;
(viii) the Buyer shall have obtained on terms and conditions reasonably satisfactory to it all third party lender financing it needs in order to: (1) consummate the transactions contemplated hereby and (2) adequately fund the working capital requirements of Target and Leasing after the Closing (the "Senior Financing");
(ix) the Buyer and Target shall enter into the lease amendments attached hereto as Exhibit "B", and the employment agreements attached hereto as Exhibit "C," with the landlord(s) under said leases, and with H▇▇▇▇▇▇▇▇, Hall and K▇▇▇▇▇▇ under said employment agreements;
(x) Yergo ·Shall have entered into the Consulting Agreement with Target and/or Leasing as attached hereto as Exhibit "D"; and
(xi) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) the representations and warranties set forth in Section 3 3.1 and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(db) the Seller Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(ec) the Company and its Subsidiary shall have given any notices to third parties and shall have procured all of the third party consents that Buyer reasonably may have requested in connection with the matters referred to in Section 4.3 above, except (i) a waiver from the landlord of the Dallas warehouse for the benefit of Comerica Bank, as agent, with regard to the Company's assets and (ii) a consent from such landlord to any assignment of lease deemed to occur as a result of the Closing;
(d) no action, suit, or proceeding shall be pending or or, to the Knowledge of Sellers, threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent any Seller's consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own the Assets Company Shares and to control the Company and its Subsidiary, or (iv) affect adversely the right of either the Company or its Subsidiary to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fe) the Seller Sellers shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(eSection 6.1(a)-(d) is satisfied satisfied, with respect to himself, in all respects;
(f) Buyer shall have entered into an employment and non-compete agreement with ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ for a period of five (5) years with an annual non-compete payment in the amount of $70,000 and upon the terms and conditions as set forth in Exhibit 6.1(f);
(g) ▇▇▇▇▇▇ ▇▇▇▇ shall have entered into a five year covenant not-to-compete agreement with Buyer in the form of Exhibit 2.2(b);
(h) Each Seller shall have delivered to Buyer a General Release in the form of Exhibit 6.1(h);
(i) Sellers shall have delivered to Buyer a General Release from ▇▇ ▇▇▇▇▇▇▇;
(j) The Company shall have entered into severance agreements with each of ▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇ in the form of Exhibit 6.1(j), which shall replace the severance agreements entered into by such employees in 1996;
(k) The Company shall have entered into a severance agreement with ▇▇▇▇▇▇▇▇ in the form of Exhibit 6.1(k), which shall replace the severance agreement dated October 31, 1996;
(l) the Buyer shall have received from counsel to the Sellers an opinion in form and substance as set forth in Exhibit 6.1(l) attached hereto, addressed to the Buyer, and dated as of the Closing Date;
(m) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer of the Company and its Subsidiary; and
(n) all actions to be taken by the Seller Sellers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 if it its executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Jpe Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions to be performed by it him in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Seller shall have performed and complied with all of its his covenants hereunder in all material respects through the Closing;
(eiii) the Company shall have procured all of the third party consents specified in Section 5(b) above;
(iv) 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (iA) prevent consummation of any of the transactions contemplated by this Agreement, (iiB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iiiC) affect adversely the right of the Buyer to own the Assets Shares and to control the Company, or (D) affect adversely the right of the Company to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fv) the Seller shall have delivered to the Buyer a certificate to the effect that (A) each of the conditions specified above in Sections 6.1(a) -(eSection 7(a)(i)-(iv) is satisfied in all respects, and (B) as of the Closing, the Company has no Liabilities or Indebtedness other than under the Promissory Note;
(gvi) [Reserved];
(vii) the Buyer shall have received the resignations, effective as of the Closing from each director and officer of the Company.;
(viii) there shall not have been any occurrence, event, incident, action, failure to act, or transaction since December 31, 2003 which has had or is reasonably likely to cause a material adverse effect on the business, assets, properties, financial condition, results of operations or prospects of the Company;
(ix) [Reserved];
(x) the Buyer shall have received such pay-off letters and releases relating to Indebtedness and Liabilities as it shall have requested and such pay-off letters shall be in form and substance satisfactory to it;
(xi) the Buyer shall have conducted UCC, judgment lien and tax lien searches with respect to the Company, the results of which indicate no liens on the assets of the Company;
(xii) the Company shall have delivered its Certificate of Incorporation and bylaws, both as amended to the Closing Date, certified by the Secretary of the Company and the Company shall deliver to the Buyer the Company's original minute book and corporate seal and all other original corporate documents;
(xiii) the Company shall deliver to the Buyer a Certificate of Good Standing in respect of the Company issued by the Delaware Secretary of State dated no earlier than 5 days prior to the closing.
(xiv) the Company shall have filed all of the reports required to be filed under the Exchange Act during the 12 months preceding the Closing (or such shorter period as the Company was required to file such reports) and the Company shall have otherwise met all of the requirements of Rule 144(c) of the Securities Act;
(xv) the Company shall have maintained at and immediately after the Closing its status as a company whose Common Stock is quoted on the OTC Bulletin Board that is maintained by the National Association of Securities Dealers, Inc.; and
(xvi) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall will be satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating 7(a) at or prior to the ClosingClosing in writing executed by the Buyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Bestway Coach Express Inc)
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the transactions Transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the transactions contemplated under this Agreement shall have received the Requisite Shareholder Approval;
(b) the Seller shall have procured all of the third party Consents specified in Section 5.2 above;
(c) 1. the representations and warranties set forth in Section 3 Sections IV.A and IV.C above shall be true and correct in all material respects at and as of the Closing Date;
(d) 2. the Seller Sellers shall have performed and complied with all of its the covenants hereunder in all material respects through the Closing
3. the Sellers shall have procured all of the third party consents specified in Section V.B above;
(e) 4. the Sellers shall sell not less than 90% of all SDL Shares to the Buyer pursuant to this Agreement;
5. all outstanding, vested options for SDL common stock have been exercised or tendered, together with payment, for exercise before or concurrent with Closing;
6. 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 or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this AgreementTransactions, (ii) cause any of the transactions contemplated by this Agreement Transactions to be rescinded following consummation, or (iii) affect adversely the right of the Buyer to own SDL Shares and to control SDL, or (iv) materially adversely affect the Assets right of SDL to own its assets and to operate the business of Seller its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
7. the Board of Directors of SDL will have adopted an amendment terminating SDL'S Section 401(k) Plan and Profit Sharing Plan (fthe "SDL Plans") on or before the Seller shall have delivered Closing Date, incorporating changes required by legislation subsequent to the Buyer date on which the SDL Plans received a certificate to favorable determination letter from the effect that each of the conditions specified above in Sections 6.1(a) -(e) is satisfied in all respects;
(g) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instrumentsIRS, and other documents required to effect the transactions contemplated hereby providing, inter alia, that no distributions shall be satisfactory made from the SDL Plans before receipt of a favorable IRS determination letter referred to in form Section VI.L; and substance to the Buyer. The Buyer may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Closing.Plans will be fully vested and funded;
Appears in 1 contract