Conditions to Obligation to Close. (a) Conditions to Buyer’s Obligation. Buyer’s obligation to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions: (i) the representations and warranties set forth in §3 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date; (ii) Sellers shall have performed and complied with all of the covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing; (iii) Sellers and Division 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) adversely affect the right of Buyer to own the Acquired Assets and to operate the former business of Division, or (D) have a Material Adverse Effect; (v) there shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect; (vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim; (vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”); (viii) Sellers shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in §7(a)(i)-(vii) is satisfied in all respects;
Appears in 2 contracts
Sources: Asset Purchase Agreement (Tidel Technologies Inc), Asset Purchase Agreement (Tidel Technologies Inc)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of the Purchaser. Buyer’s The obligation of the Purchaser to consummate the transactions to be performed by it the Purchaser in connection with the Closing is are subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3 Sections 4 and 5 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers the Seller shall have performed and complied with all of the her covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummationconsummation (and no such injunction, (C) adversely affect the right of Buyer to own the Acquired Assets and to operate the former business of Divisionjudgment, order, decree, ruling, or charge shall be in effect);
(Div) the Purchaser shall have a Material Adverse Effect;received the resignation of the sole officer and director of the Company and the designees specified by the Purchaser will have been appointed as officers and directors of the Company; and
(v) there shall not the Purchaser will have been, received such pay-off letters and releases relating to outstanding indebtedness and liabilities as it will have reasonably requested and such pay-off letters and releases will be in form and substance reasonably satisfactory to the Purchaser. The Purchaser may waive any condition specified in this Section 10(a) at or prior to the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;Closing in writing executed by the Purchaser.
(vib) there shall not have been, or Conditions to Obligation of the occurrence Seller. The obligations of any events which could reasonably the Seller to consummate the transactions to be expected to have, an adverse change or impact with respect to Sellers or Buyer performed by her in connection with the CSS ClaimClosing are subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 6 above shall be true and correct in all material respects at and as of the Closing Date;
(viiii) the Purchaser shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(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 (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); and
(iv) all actions to be taken by the Purchaser in connection with consummation of the transactions contemplated hereby and all certificates, instruments, and other documents required to effect the Amendment shall have been approved transactions contemplated hereby will be satisfactory in form and adopted substance to the Seller. The Seller may waive any condition specified in this Section 10(b) at or prior to the Closing in writing executed by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in §7(a)(i)-(vii) is satisfied in all respects;Seller.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Net Profits Ten Inc.), Stock Purchase Agreement (Net Profits Ten Inc.)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of the Parent. Buyer’s The obligation of each of the -------------------------------------- Parent and the Transitory Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3 (S)3(a) and (S)4 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers the Stockholders shall have performed and complied with all of the their respective covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers the Company and Division its Subsidiaries shall have procured all of the third-material third party consents specified in §5(brequired pursuant to (S)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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely affect the right of Buyer the Parent to own the Acquired Assets Company Shares and to operate control the former business of DivisionCompany and its Subsidiaries, or (D) have a Material Adverse Effectaffect materially and adversely the right of any of the Company and its Subsidiaries to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(v) there shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws each of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers Stockholders shall have delivered to Buyer the Parent a certificate to the effect that each of the conditions specified above in §7(a)(i)-(vii(S)7(a)(i)-(ii) is satisfied, and the Company shall have delivered to the Parent a certificate to the effect that each of the conditions specified above in (S)7(a)(iii)-(iv) is satisfied;
(vi) the FCC shall have granted the Transfer of Control Application and such grant shall be in full force and effect, all applicable waiting periods (and any extensions thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or otherwise been terminated, and the Parties, the Company, and its Subsidiaries shall have received all other material 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 Parent and each of the Stockholders shall have entered into a Registration Rights Agreement in form and substance as set forth in Exhibit C attached hereto and the same shall be in full force and effect;
(viii) the Parent shall have received from each Stockholder that is not a natural person (A) a copy of resolutions duly adopted by such Stockholder's board of directors authorizing such Stockholder to enter into this Agreement and consummate the transactions contemplated hereby, certified by the secretary or assistant secretary of such Stockholder as being complete and correct and in full force and effect as of the Closing Date, and (B) an incumbency certificate dated as of the Closing Date with respect to the officer executing this Agreement on behalf of such Stockholder;
(ix) the Parent 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;
(x) a majority of the Parent's directors that are not Affiliates of the Company shall have approved the transactions contemplated hereby;
(xi) the holders of eighty percent (80%) of the Parent's Senior Preferred Stock shall have approved the transactions contemplated hereby;
(xii) the Parent shall be satisfied that no material adverse change in the financial condition, results of operation, business, assets, properties or prospects of the Company shall have occurred since December 31, 1998;
(xiii) the Parent shall have received an opinion from a nationally recognized investment bank stating the transactions contemplated hereby are fair to the Parent from a financial point of view;
(xiv) the Parent and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have executed amendments to ▇▇. ▇▇▇▇▇'▇ employment and equity incentive agreements on terms satisfactory to Parent in its sole discretion;
(xv) Alta and Syncom shall each have entered into, and shall have pledged all respectsthe Parent Class A Shares and Warrants issuable to it hereunder for the benefit of the Senior Lenders pursuant to, a pledge agreement in the form attached hereto as Exhibit D;
(xvi) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have entered into, and shall have pledged all the Parent Class A Shares and Warrants issuable to her hereunder for the benefit of the Senior Lenders pursuant to, a pledge agreement in the form attached hereto as Exhibit E; and
(xvii) all actions to be taken by 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 will be reasonably satisfactory in form and substance to the Parent. The Parent may waive any condition specified in this (S)7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 2 contracts
Sources: Merger Agreement (Radio One Inc), Merger Agreement (Radio One Inc)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of Investor. Buyer’s The obligation of Investor to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3 above Section 3(a) and Section 4 shall be true and correct in all material respects at and as of the Closing Datedate of this Agreement, except to taking into account the extent that such Disclosure Schedule;
(ii) the representations set forth in Section 3(a) and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) Section 4 shall be true and correct in all material respects at and as of the Closing Date, taking into account the Disclosure Schedule (as supplemented in accordance with Sections 5(g) and 5(q) hereof);
(iiiii) from the date of this Agreement through the Closing Date, no Material Adverse Effect shall have occurred;
(iv) HarnCo and Sellers shall have performed and complied with all of the their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iiiv) Sellers and Division there shall have procured all of the third-party consents specified in §5(b) above;
(iv) no not be any action, suit, 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 Agency or before any arbitrator in connection with the consummation of the transactions contemplated by this Agreement wherein an unfavorable injunction, judgment, order, decree, ruling, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummationconsummation or result in material damages to Investor, the MHE Business or the Companies, (C) affect adversely affect the right of Buyer the Investor to own the Acquired Assets shares of MHE and to operate control the former business of DivisionCompanies and their Subsidiaries , or (D) have a Material Adverse Effect;
material adverse effect on the right of the Companies and their Subsidiaries to own their assets or to operate their business (v) there shall not have beenand no such injunction, judgment, order, decree, ruling, or the occurrence of any events which could reasonably charge shall be expect to have, a Material Adverse Effectin effect);
(vi) there all applicable waiting periods (and any extensions thereof) under the HSR Act and any applicable European or national merger regulations shall not have been, expired or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claimotherwise been terminated;
(vii) this Agreement and the transactions contemplated hereby and the Amendment HTI shall have been approved and adopted by executed the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”)Trademark Agreement;
(viii) HII shall have executed the Non-Competition Agreement;
(ix) HarnCo shall have executed the Stockholders Agreement, the Supply Agreement, the Transition Services Agreement, the Assumption Agreement and the Credit Indemnity Agreement;
(x) HarnCo and the Sellers shall have delivered to Buyer the Investor a certificate to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 7(a)(i) - (iv) is satisfied in all respects;
(xi) Investor shall have received the opinions in form and substance as set forth in Exhibit H attached hereto, addressed to the Investor, and dated as of the Closing Date;
(xii) Investor shall have obtained financing for the transactions contemplated by this Agreement on terms reasonably consistent with the Commitment Letters and Term Sheets, respectively;
(xiii) The business relationships identified on Schedule 4(m)(vii) (other than those identified in items 4 through 12 and items 17 and 19 thereof) shall have either been (A) terminated or (B) superseded or otherwise modified pursuant to the express terms of the Transaction Agreements (as applicable);
(xiv) The Employment Agreements shall be in full force and effect; and
(xv) MHE shall own, directly or indirectly, all of the outstanding equity securities of the other Companies and their Subsidiaries free and clear of all Encumbrances (other than (A) the 15% interest in Blooma held by third parties and (B) the Hercules Shares). Investor may waive any condition specified in this Section 7(a) prior to the Closing (without prejudice to any of Investor's rights under Section 8 hereof).
Appears in 2 contracts
Sources: Recapitalization Agreement (MMH Holdings Inc), Recapitalization Agreement (Morris Material Handling Inc)
Conditions to Obligation to Close. (a) Conditions to Buyer’s Obligation. Buyer’s The obligation of Fields to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §Section 3 and Section 5 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers the Principal Shareholder and the Company shall have performed and complied with all of the its their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers the Company and Division its Subsidiaries shall have procured all of the third-party consents specified in §5(bSection 6(b) above;
(iv) there shall have been no material adverse changes in the Company and its Subsidiaries;
(v) Fields shall have concluded its due diligence review of the Company and its Subsidiaries to Fields' sole satisfaction;
(vi) 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
(A) prevent consummation of any of the transactions contemplated by this Agreement, ;
(B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, ;
(C) affect adversely affect the right of Buyer Fields to own the Acquired 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 former business of Divisionits businesses (and no such injunction, judgment, order, decree, ruling, or (D) have a Material Adverse Effect;
(v) there charge shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claimeffect);
(vii) this Agreement the Company and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers principal Shareholder shall have delivered to Buyer Fields a certificate to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 8(a)(i), (ii), (iii), (iv) and (vi) is satisfied in all respects;
(viii) Fields shall have received from counsel to the Company and from counsel to the Principal Shareholder written opinions addressed to Fields, dated as of the Closing Date and in form and substance acceptable to Fields and its counsel;
(ix) the Related Transaction Documents shall have been executed by each of the parties thereto, and each of the Related Transactions shall have been closed or each of the conditions for the closing of the Related Transactions concurrently with the Closing of the transaction contemplated by this Agreement shall have been satisfied or waived to Fields' satisfaction;
(x) the Company shall have delivered a share certificate to Fields evidencing the Shares;
(xi) following the Closing of the transaction described herein and the Related Transactions, Fields shall own fifty-six (56%) of the outstanding Company Shares on a fully diluted basis, and there shall be no other shareholders of the Company except the Principal Shareholder;
(xii) all actions to be taken by the Company and the Principal 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 will be satisfactory in form and substance to Fields. Fields may waive any condition specified in this Section 8(a) if it executes a writing so stating at or prior to the Closing. . The obligation of the Company and the Principal Shareholder to consummate the transactions to be performed by them in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(ii) Fields shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(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 for before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(iv) Fields shall have delivered to the Company and the Principal Shareholder a certificate to the effect that each of the conditions specified above in Section 8(b) is satisfied in all respects;
(v) the Related Transactions Documents, including a developer agreement between the Company and the Principal Shareholder whereby the Principal Shareholder receives the area development rights for Vermont, New Hampshire, Massachusetts, Maine and the Greater Dallas/Ft. Worth, Texas area shall have been executed by all of the parties thereto, and 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 Company and Principal Shareholder's satisfaction;
(vi) Fields shall be prepared to deliver the Purchase proceeds upon compliance with the matters set forth in Section 8(a); and
(vii) all actions to be taken by Fields in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Company. The Company and the Principal Shareholder may waive any condition specified in this Section 8(b) if they execute a writing so stating at or prior to the Closing.
Appears in 2 contracts
Sources: Stock Acquisition Agreement (Fields MRS Original Cookies Inc), Stock Acquisition Agreement (Fields MRS Original Cookies Inc)
Conditions to Obligation to Close. (a) A. Conditions to Buyer’s ObligationObligation of Brokat. Buyer’s The obligation of Brokat to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) 1. the representations and warranties set forth in §3 (S)III.A. and Article IV., above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers 2. the Shareholders and TST shall have performed and complied with all of the their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers 3. TST and Division its Subsidiaries shall have procured all of the third-material third party consents specified in §5(b) (S)V.B. above;
(iv) 4. no action, suit, or proceeding shall be pending or threatened before any court or quasi-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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely affect the right of Buyer Brokat to own the Acquired Assets TST Shares and to operate the former business of Divisioncontrol TST and its Subsidiaries, or (D) have a Material Adverse Effect;
affect materially and adversely the right of any of TST and its Subsidiaries to own its assets and to operate its businesses (v) there shall not have beenand no such injunction, judgment, order, decree, ruling, or the occurrence of any events which could reasonably charge shall be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”effect);
(viii) Sellers 5. the Shareholders shall have delivered to Buyer Brokat a certificate to the effect that each of the conditions specified above in §7(a)(i)-(vii) (S)VII.A.1.-4. is satisfied in all respects;
6. all applicable waiting periods (and any extensions thereof) under the ▇▇▇▇- ▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or otherwise been terminated and the Parties, TST, and its Subsidiaries shall have received all other material authorizations, consents, and approvals of governments and governmental agencies referred to in (S)III.A.2., (S)III.B.1., and (S)IV.B.1., above;
7. all actions to be taken by the Shareholders, TST and any of its Subsidiaries in connection with consummation of the transactions contemplated herein and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Brokat;
8. all U.S. federal and state securities law requirements have been satisfied; and
9. receipt by Brokat of written resignations of all directors and officers of TST and its Subsidiaries who are Shareholders. Brokat may waive any condition specified in this (S)VII.A. if it executes a writing so stating at or prior to the Closing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Brokat Infosystems Ag), Stock Purchase Agreement (Brokat Aktiengesellschaft)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of the Purchaser. Buyer’s The obligation of the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §Section 3 above that are qualified as to their materiality or to the Knowledge of the Seller shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties Date (as so written, including the term “material” or “Material”) shall be true and correct in all respects at though made then and as of though the Closing DateDate were substituted for the date of this Agreement);
(ii) Sellers the Seller and the Company shall have performed and complied with all of the their respective covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division there shall have procured all of the third-party consents specified in §5(b) above;
(iv) no action, suit, or proceeding shall 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, ruling or charge would (A) prevent in effect preventing consummation of any of the transactions contemplated by this Agreement, (B) cause and no action, suit, claim or proceeding shall be pending before any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated by this Agreement to be rescinded following consummation, (C) adversely affect the right of Buyer to own the Acquired Assets and to operate the former business of Division, or (D) have a Material Adverse EffectAgreement;
(viv) there shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers Seller shall have delivered to Buyer the Purchaser a certificate to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 9(a)(i) is and (ii), as they pertain to the Seller, have been satisfied in all respects;
(v) the Seller shall have delivered to the Purchaser a certificate to the effect that the conditions specified above in Section 9(a)(i) and (ii), as they pertain to the Company, have been satisfied in all respects;
(vi) the Seller shall have delivered to the Purchaser all of the items under Section 2(f) herein; and
(vii) there shall be no payables or receivables between the Seller and the Company or between Affiliates of the Seller and the Company.
(viii) the Purchaser shall have obtained financing to implement the transactions provided for in this Agreement and to provide sufficient working capital on such terms and conditions as are acceptable to the Purchaser, and the Purchaser shall have satisfied all of the conditions precedent to acquisitions under WinsLoew Furniture, Inc.'s line of credit with Fleet.
(ix) all consents, waivers, exemptions, governmental approvals, regulatory approvals and other actions that are necessary in connection with the consummation of the transactions contemplated by this Agreement, shall be in full force and effect on the Closing Date.
(x) the Purchaser shall have received from Seller all information available to Seller that is requested by the Purchaser promptly after the date hereof, and the Purchaser, upon review of such matters related to Seller, its assets, liabilities, financial condition, business, prospects or relations with third parties as it shall deem necessary or appropriate (in which review Seller shall cooperate), shall not have learned of any fact or matter that, in the good faith determination of Purchaser, causes Purchaser to be dissatisfied in any material respect with the transactions contemplated by this Agreement. The Purchaser may waive any condition specified in this Section 9(a) if it executes a writing so stating at or prior to the Closing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Winsloew Furniture Inc), Stock Purchase Agreement (Winsloew Furniture Inc)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationCONDITIONS TO OBLIGATION OF NEW ANDRX, ANDRX AND MERGER SUBS. Buyer’s The obligation of New Andrx, Andrx and the Merger Subs to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) this Agreement and the Cybear Merger shall have received the Required Cybear Stockholder Vote;
(ii) Cybear and its Subsidiaries shall have procured all of the third party consents specified in Section 6(b) above;
(iii) 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, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(iiiv) Sellers Cybear shall have performed and complied with all of the its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division shall have procured all of the third-party consents specified in §5(b) above;
(ivv) 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 arbitrator shall have enacted, issued, promulgated, enforced or entered any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge which would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely affect the right of Buyer the Cybear Surviving Corporation to own the Acquired Assets and former assets, to operate the former business businesses, and to control the former Subsidiaries of DivisionCybear, or (D) have a Material Adverse Effect;
affect adversely the right of any of the former Subsidiaries of Cybear to own its assets and to operate its businesses (v) there shall not have beenand no such injunction, judgment, order, decree, ruling, or the occurrence of any events which could reasonably charge shall be expect to have, a Material Adverse Effectin effect);
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers Cybear shall have delivered to Buyer New Andrx a certificate signed by ▇▇. ▇▇▇▇▇▇ ▇. Goldman and ▇▇▇▇ ▇▇▇▇▇▇▇▇ to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 7(a)(i)-(v) is satisfied in all respects;
(vii) the S-4 Registration Statement shall have become effective under the Securities Act;
(viii) the New Andrx Common Stock and Cybear Tracking Common Stock that will be issued in the Mergers shall have been approved for listing on the Nasdaq National Market, subject to official notice of issuance;
(ix) This Agreement and the Andrx Merger shall have received the Required Andrx Stockholder Vote;
(x) Andrx shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP an opinion (the "Andrx Closing Tax Opinion") to the effect that the Andrx Merger should constitute a tax-free reorganization pursuant to Code Section 368(a)(1)(A) addressed to Cybear and Andrx, and dated the Closing Date;
(xi) New Andrx and Cybear shall have entered into the Tax Sharing Agreement attached hereto as Exhibit C (the "Tax Sharing Agreement"); and
(xii) all actions to be taken by Cybear in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to New Andrx. New Andrx, Andrx and the Merger Subs may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing, except where such condition may not be waived as a matter of law.
Appears in 2 contracts
Sources: Merger Agreement (Cybear Inc), Merger Agreement (Andrx Corp)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of AHC. Buyer’s The obligation of AHC to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §Section 2(a) and Section 3 above shall be true and correct in all material respects at and as of the Closing Date, Date (except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such their express provisions made as “Material Adverse Effect” or “Material Adverse Change,” of a specific date, in which case such representations and warranties (as so written, including the term “material” or “Material”) they shall be true and correct in all material respects at and as of the Closing Datespecified date);
(ii) the Sellers shall have performed and complied with all of the their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers AG and Division its Subsidiaries shall have procured all of the third-third party consents specified in §5(bSection 4(b) above;
(iv) no action, suit, or proceeding shall be pending or to AG and Seller's Knowledge 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) adversely affect the in a material adverse manner right of Buyer AHC to own the Acquired Assets AG Capital Stock and to operate the former business of Divisioncontrol AG and its Subsidiaries, or (D) have affect in a Material Adverse Effectmaterial adverse manner the right of any of AG and its Subsidiaries to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(v) there shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers shall have delivered to Buyer AHC a certificate to the effect that each of the conditions specified above in §7(a)(i)-(viiSections 6(a)(i)(ii) is and (iv), to the extent said sections apply to the Sellers, are satisfied in all respects;
(vi) the relevant parties shall have entered into an Employment Agreement with ▇▇▇ ▇▇▇▇▇▇▇▇▇▇. in form and substance as set forth on Exhibit C attached hereto and the same shall be in full force and effect;
(vii) AHC shall have received from counsel to each of the Sellers and AG an opinion in form and substance reasonably acceptable to AHC, addressed to AHC, and dated as of the Closing Date;
(viii) AHC shall have received the resignations, effective as of the Closing, of each director and officer of AG and its Subsidiaries other than those whom AHC shall have specified in writing at least five business days prior to the Closing;
(ix) AG shall have delivered to AHC unaudited consolidated and consolidating balance sheet and statement of income and cash flow prepared in accordance with HGB for the calendar month ended within 30 days of the Closing Date ("AG Closing Financials");
(x) AG shall have, to AHC's satisfaction obtained, when appropriate, any and all releases for any Security Interests and delivered copies of same to AHC, or in the alternative, written agreements from the holders of any Security Interests that upon receipt of any owed amounts to such persons, the holder of the Security Interest shall cooperate with AHC to release all Security Interests;
(xi) all actions to be taken by the Sellers and/or AG in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to AHC. AHC may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Authentidate Holding Corp)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of the Coach Parties and the Company. Buyer’s The obligation of the Coach Parties, the Company and TK Investor No. 1 to consummate the transactions to be performed contemplated by it in connection with the Closing this Agreement is subject to satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in §3 above Section 3(a) shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers the Seller shall have performed and complied with all of the its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely affect the right of the Buyer to own the Acquired Assets Shares (and to operate the former business of Divisionno such injunction, judgment, order, decree, ruling, or (D) have a Material Adverse Effect;
(v) there charge shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”effect);
(viiiiv) Sellers the Seller shall have delivered to Buyer the Coach Parties and the Company a certificate to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 6(a)(i)-(iii) is are satisfied in all respects;
(v) the Seller shall have executed and delivered to the Coach Parties and the Company a release substantially in the form of Exhibit A;
(vi) the Buyer shall have received a letter of resignation, effective as of the Closing, of each Sumitomo Director acknowledging that he or she has no claim outstanding for director's fees, wrongful or unfair dismissal, redundancy or any claim in respect of any other moneys or benefits due to him or her from the Company arising out of such resignation and that he or she is not entitled to any remuneration from the Company in respect of his or her appointment; and
(vii) the Seller shall have executed and delivered the Cooperation Agreement. The Coach Parties, the Company and TK Investor No. 1 may waive any condition specified in this Section 6(a) by executing a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Coach Inc)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of Investor. Buyer’s The obligation of Investor to consummate the transactions to be performed by it in connection with the Closing is subject to the satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in §3 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers The Company shall have performed and complied with all of the its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the ClosingClosing Date;
(iii) Sellers The Company and Division its Subsidiaries shall have procured all of the third-any third party consents specified in §Section 5(b) aboveabove and shall deliver to the Investor the following documents, each of which shall be appropriately executed other than by the Investor: (A) a Voting Agreement in the form of Exhibit "B" hereto, and (B) an opinion of the Company's legal counsel, P▇▇▇▇▇▇ ▇▇▇▇▇ & L▇▇▇▇▇▇, in the form of Exhibit "C" hereto;
(iv) no action, suit, or proceeding shall be pending or threatened have been instituted before any court or quasi-judicial or administrative agency of any national, federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) adversely affect the right of Buyer to own the Acquired Assets and to operate the former business of Division, or (D) have a Material Adverse Effect;
(v) there shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers The Company shall have delivered to Buyer Investor a certificate to the effect that (A) each of the conditions specified above in §7(a)(i)-(viiSection 8(a)(i)-(iv) is (other than the deliveries under Section 8(a)(iii)) are satisfied in all respects;, and (B) the Company is not aware of any material modifications to the Most Recent Financial Statements necessary to make those statements not false or misleading; and
(vi) all applicable waiting periods (and any extensions thereof) under applicable law shall have expired or otherwise been terminated and the Company and its Subsidiaries shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Section 5(b) relating to the Company and its Subsidiaries. The Investor may waive any condition specified in this Section 8(a) if it executes a writing so stating at or prior to the Closing. At the Closing, assuming the satisfaction, or waiver by the Investor, of the conditions set forth in this Section 8(a), the Investor shall deliver to the Company the Purchase Price.
Appears in 1 contract
Sources: Stock Purchase Agreement (Wireless Cable & Communications Inc)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of the Parent and Merger Sub. Buyer’s The obligation of the Parent and Merger Sub to consummate the transactions to be performed by it them in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §Section 3 above (considered collectively) and each of the representations and warranties (considered individually) shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations date of this Agreement and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers the Company and the Principal Shareholders shall have performed and complied with all of the their covenants and obligations hereunder (considered collectively) and each of such covenants and obligations hereunder (considered individually) in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division the Company shall have procured all of the third-third party consents specified in §5(b) aboveon Schedule B hereto;
(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 unfavourable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (C) affect adversely affect the right of Buyer the Company Shares and other Equity Rights to be cancelled upon the Merger, or Merger Sub to own the Acquired Assets and assets of the Company, or to operate the former business of DivisionBusiness (and no such injunction, judgment, order, decree, ruling, or (D) have a Material Adverse Effectcharge shall be in effect);
(v) there all filings that are required to have been made by the Parties with any Canadian, United States or other Governmental Body in order to carry out the transactions contemplated by this Agreement shall have been made and all authorizations, consents and approvals from any Canadian, United States or other Governmental Body required to carry out the transactions contemplated by this Agreement shall have been received and any applicable waiting periods (and any extensions thereof) shall have expired provided, that Parent and Merger Sub shall not be relieved of their obligations to consummate the transactions if they have been, or not used reasonable best efforts to complete filings and seek the occurrence of any events which could reasonably be expect to have, a Material Adverse Effectconsents within their control;
(vi) there the Company shall not have beendelivered to the Parent a certificate, or executed by the occurrence of any events which could reasonably be expected Company to have, an adverse change or impact with respect to Sellers or Buyer the effect that the conditions specified above in connection with the CSS ClaimSections 5(a)(i)-5(a)(v) have been satisfied in all respects;
(vii) each of Alan Hardwick and Suzanne Schneider shall have entered ▇▇▇▇ ▇ ▇▇finit▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇reement with the Surviving Corporation (each, an "EMPLOYMENT AGREEMENT"), each containing provisions relating to non-compete obligations satisfactory to the Parent and each in form and substance and with a term reasonably satisfactory to the Parent and the same shall be in full force and effect.
(viii) [This section has been intentionally deleted.]
(ix) [This section has been intentionally deleted.]
(x) other than the funding pursuant to Sections 6(d) and (e) the Company shall have delivered to the Parent payoff letters with respect to all other amounts due under the Indebtedness of the Company, to release Security Interests in respect to the Company and otherwise obtain clear title to the Company Shares, in form and substance reasonably satisfactory to the Parent, and the Company and the Principal Shareholders shall have satisfied all Indebtedness of the Company (including the conversion of any and all Indebtedness owing by the Company to any member of the Targeted Affiliated Group into contributed capital of the Company), and the Company shall have delivered to the Parent, in form satisfactory to the Parent, evidence of the same;
(xi) the Parent, the Company and the Shareholder Representative shall have executed and delivered the Milestone Payment Agreement (the "MILESTONE PAYMENT AGREEMENT") in form and substance as set forth in Exhibit C attached hereto, and the same shall be in full force and effect;
(xii) the Parent, the Company and Targeted shall have executed the Transition Services Agreement (the "TRANSITION SERVICES AGREEMENT") in form and substance as set forth in Exhibit D attached hereto, and the same shall be in full force and effect;
(xiii) the Parent shall have received from Dorsey & Whitney LLP, counsel to Targeted, opinions ▇▇▇▇ respect to Targeted Genetics, the transactions contemplated hereby in form and substance as set forth in Exhibit E attached hereto, addressed to the Parent, and dated as of the Closing Date;
(xiv) the Parent shall have received from Graham & Dunn PC, counsel to the Company, opinions ▇▇▇▇ ▇esp▇▇▇ to the Company and the transactions contemplated hereby in form and substance set forth in Exhibit F attached hereto, addressed to the Parent, and dated as of the Closing Date;
(xv) the Company shall have delivered to the Parent evidence reasonably satisfactory to the Parent of the termination of all Equity Rights and the release of all Liability with respect to the Equity Rights;
(xvi) Targeted and the Company shall have taken all corporate action necessary to terminate the Company's participation in, effective no later than the day before the Closing Date, all Company Plans which are intended to qualify as tax-qualified retirement plans under Code Section 401(a), and evidence of the same shall have been delivered to the Parent;
(xvii) the Company and the Principal Shareholders shall have executed a funds flow and settlement statement reflecting the transactions contemplated by this Agreement;
(xviii) the Company shall have delivered to the Parent a certificate of the Secretary of the Company as to the incumbency of its officers, a copy of a certificate evidencing the incorporation and its authorization to conduct business in the State of Washington, a copy of the articles and bylaws of the Company, and a copy of the resolutions adopted by the board of directors and the Shareholders of the Company authorizing the Merger and the transactions contemplated by this Agreement;
(xix) all actions to be taken by the 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 will be reasonably satisfactory in form and substance to the Parent;
(xx) any orders or approvals which may be required from shareholders of the Parent, and regulatory and governmental authorities required to carry out the transactions contemplated by this Agreement shall have been received and any applicable waiting periods shall have expired, including, without limitation, approvals from the Toronto Stock Exchange, including conditional listing approval of the Parent Shares and the Convertible Debenture Shares to be issued in connection with this Agreement and under the Convertible Debenture on the Toronto Stock Exchange, subject to the filing of customary documentation;
(xxi) no Person shall have made or threatened any claim asserting that such Person may be the holder or the beneficial owner of, or may have the right to acquire or obtain beneficial ownership of, any capital stock or other securities of the Company;
(xxii) the Shareholder Representative shall have executed and delivered the Convertible Debenture in form and substance as set forth in Exhibit A attached hereto, and the same shall be in full force and effect;
(xxiii) the Shareholder Representative shall have executed and delivered the Security Agreement (the "SECURITY AGREEMENT") in form and substance as set forth in Exhibit G hereto, and the same shall be in full force and effect;
(xxiv) there shall have been no Material Adverse Effect with respect of the Company since the date of this Agreement;
(xxv) this Agreement and the transactions contemplated hereby and the Amendment shall have been duly and validly approved by all of the Shareholders of the Company and adopted by none of the stockholders holders of Parent the outstanding Company Shares shall have exercised statutory dissenters' rights under Washington law in accordance connection with the laws of the State of Delaware (the “Stockholder Approval”)Merger;
(viiixxvi) Sellers each Shareholder shall have duly executed and delivered to Buyer the Parent a certificate representation and support agreement (the "REPRESENTATION AND SUPPORT AGREEMENT") in form and substance set forth in Exhibit H hereto;
(xxvii) each person who as at the Closing Date has elected to exercise options to purchase the common shares of the Company shall have duly executed and delivered to the effect Parent a representation agreement (the "OPTIONHOLDER REPRESENTATION AGREEMENT") in form and substance set forth in Exhibit I hereto;
(xxviii) the Company shall have obtained shareholder approval of any payment or benefit that each a Company employee or consultant may receive in connection with the Merger that would be considered a "parachute payment" under Section 280G of the conditions Code. Such shareholder approval shall comply with the "Shareholder Approval Requirements" of Section 280(b)(5) of the Code and related Treasury regulations; and
(xxix) the Parent shall be satisfied, in its sole discretion, with its due diligence investigation of the Company and the Company's ongoing working capital requirements. The Parent may waive any condition specified above in §7(a)(i)-(viithis Section 5(a) is satisfied in all respects;if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of the Purchaser and the Purchaser ----------------------------------------------------------- Subsidiary. Buyer’s The obligation of each of the Purchaser and the Purchaser ---------- Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by Purchaser or Purchaser Subsidiary of the following conditionsconditions at or prior to the Closing Date:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Target and its Subsidiaries shall have procured all third-party consents specified in (S)5(b) above which are applicable to the Target and its Subsidiaries;
(iii) the representations and warranties set forth in §3 (S)3 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such for (A) changes contemplated by this Agreement, (B) those representations and warranties are qualified by the term “material,” or contain terms such which address matters only as “Material Adverse Effect” or “Material Adverse Change,” in of a particular date (which case such representations and warranties (as so written, including the term “material” or “Material”) shall be have been true and correct in all respects at and as of the Closing Datesuch date);
(iiiv) Sellers the Target shall have performed and complied with all of the its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iiiv) Sellers and Division shall have procured all of the third-party consents specified in §5(b) above;
(iv) no actionneither any statute, suitrule, 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, judgmentregulation, order, decreestipulation or injunction (each an "Order") shall be enacted, rulingpromulgated, ----- entered, enforced or charge would deemed applicable to the Merger nor any other action shall have been taken by any governmental authority, administrative agency or court of competent jurisdiction (A) prevent which prohibits the consummation of any of the transactions contemplated by this Agreement, the Merger; (B) cause which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by this Agreement to be rescinded following consummation, the Merger; (C) adversely affect which makes the right purchase of, or payment for, some or all of Buyer to own the Acquired Assets and to operate the former business of Division, Target Shares illegal; or (D) have a Material Adverse Effect;
which imposes material limitations on the ability of the Purchaser or the Purchaser Subsidiary to acquire or hold or to exercise effectively all rights of ownership of Target Shares, including, without limitation, the right to vote any Target Shares purchased by the Purchaser on all matters properly presented to the Target Stockholders; or (vE) there shall not have beenwhich imposes any limitations on the ability of the Purchaser or the Purchaser Subsidiary, or any of their respective Subsidiaries, effectively to control in any material respect the occurrence business or operations of the Target or any events which could reasonably be expect to have, a Material Adverse Effectof its Subsidiaries;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers Target shall have delivered to Buyer the Purchaser and the Purchaser Subsidiary a certificate to the effect that each of the conditions specified above in §7(a)(i)-(vii(S)6(a)(i)-(S)6(a)(iv) is satisfied in all respects; provided, however, with respect to (S)6(a)(i), the Target shall only be required -------- ------- to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Target Stockholders;
(vii) all applicable waiting periods (and any extensions thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or otherwise been terminated, and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(viii) the Purchase Warrant shall have been exercised in full, provided, that such exercise may be conditioned upon the effectiveness of -------- the Merger;
(ix) the Purchaser Shares to be issued in the Merger shall have been approved upon official notice of issuance for quotation on Nasdaq, subject to official notice of issuance; and
(x) the Registration Statement shall have been declared effective by the SEC under the Securities Act. No stop order suspending the effectiveness of the Registration Statement shall have been issued by the SEC and no proceedings for that purpose shall have been initiated or threatened by the SEC. Subject to the provisions of applicable law, the Purchaser Subsidiary may waive, in whole or in part, any condition specified in this (S)6(a) if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Merger Agreement (Primus Telecommunications Group Inc)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of the Purchaser. Buyer’s The obligation of the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers shall have performed and complied with all of the covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division Seller shall have procured all of the third-material third party consents specified necessary in §5(b) aboveorder to consummate the transactions described herein;
(ivii) 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (C) adversely affect have a material adverse effect on the right of Buyer the Purchaser to own the Acquired Purchased Assets and to operate the former business Rollover Business;
(iii) the Purchaser shall have received all material authorizations, consents, and approvals of Division, or governments and governmental agencies necessary in order to consummate the transactions described herein;
(Div) have a Material Adverse Effectan opinion of legal counsel for the Seller and the Shareholders in substantially the form set forth in Exhibit G attached hereto;
(v) there shall not have been, or all actions to be taken by the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or Seller and the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer Shareholder in connection with the CSS Claim;
(vii) this Agreement and consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the Amendment transactions contemplated hereby will be reasonably satisfactory in form and substance to the Purchaser; and
(vi) the Purchaser, acting in good faith, shall have been approved and adopted by the stockholders of Parent in accordance be reasonably satisfied with the laws results of its continuing business, legal, environmental, and accounting due diligence, including, without limitation, its review or evaluation of any matter addressed in any section of the State of Delaware (Disclosure Schedule regarding the “Stockholder Approval”);
(viiiCompany. The Purchaser may waive any condition specified in this Section 5(a) Sellers shall have delivered to Buyer if it executes a certificate writing so stating at or prior to the effect that each of the conditions specified above in §7(a)(i)-(vii) is satisfied in all respects;Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Emerge Interactive Inc)
Conditions to Obligation to Close. (a) 7.01 Conditions to Buyer’s ObligationObligations of the Buyer and Family Golf. Buyer’s obligation The respective obligations of the Buyer and Family Golf to consummate the transactions to be performed contemplated by it in connection with the Closing is this Agreement are subject to satisfaction (or, where legally permissible, waiver by the Buyer and Family Golf) at or prior to the Closing Date of the following conditions:
(ia) the representations and warranties set forth in §3 Section 3.01 and Article IV above (taken collectively and individually) shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects though made again at and as of such date, without giving effect to any amendment to the Closing DateDisclosure Schedule delivered to the Buyer after the date of this Agreement (provided, however, that this subsection 7.01(a) shall not apply to any representations or warranties made with respect to any of RMSC, RMC or RMS or their respective businesses, financial conditions, assets, tax positions or any other matters affecting any of such corporation(s));
(iib) Sellers since the date of this Agreement, there shall have been no Material Adverse Effect;
(c) the Seller shall have performed and complied with all of the its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iiid) Sellers and Division the Seller shall have procured obtained, or shall have caused SkateNation to obtain, (i) all of the third-third party consents specified in §5(bSection 5.02 above (subject to the exceptions noted in such Section) and provided written evidence of receipt of such consents in form reasonably satisfactory to Buyer and (ii) all datedown endorsements or title reports or commitments to Title Insurance Policies specified in Section 5.10 above;
(ive) no action, suit, or proceeding shall be pending or threatened before any court or quasi-quasi- judicial or administrative agency of any federal, state, local, Governmental Authority or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would would, and no statute, ordinance, rule, regulation or other law shall have been enacted or promulgated by any federal, state, local or foreign government or Governmental Authority which would, (Ai) prevent consummation of any of the transactions contemplated by this Agreement, (Bii) cause require any of the transactions contemplated by this Agreement to be rescinded following consummation, (Ciii) affect adversely affect the right of the Buyer to own, and to exercise all privileges of ownership of, the Purchased Shares and to control SkateNation and its Subsidiaries, or (iv) have a material adverse effect on the right of SkateNation and its Subsidiaries to own the Acquired Assets their assets and to operate the former business of Divisiontheir businesses (and no such injunction, judgment, order, decree, ruling, or (D) have a Material Adverse Effect;
(v) there charge shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”effect);
(viiif) Sellers the Seller shall have delivered to the Buyer and Family Golf a certificate certificate, dated the Closing Date and executed by an officer of Seller on behalf of the Seller, to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 7.01(a) through (e) is satisfied satisfied;
(g) all applicable waiting periods (and any extensions thereof) under the ▇▇▇▇- ▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or otherwise been terminated, and the Parties and SkateNation shall have received all other authorizations, consents, and approvals of, and all requisite notices shall have been given to, the Governmental Authorities referred to in Sections 3.01(b), 3.01(c), 3.02(b), 3.02(c), 4.04 and 5.02(b) above;
(h) The Seller's Secretary shall have executed and delivered to the Buyer a certificate in form and substance as set forth in Exhibit D attached hereto regarding the charter, and by-laws of the Seller, authorizing resolutions adopted by the Seller's Board of Directors, and incumbency of signing officers;
(i) the Seller shall have delivered to the Buyer long form good standing certificates in respect of Seller and SkateNation issued by the Secretary of State of Delaware, and a certificate of good standing issued by the Secretary of State of each state in which SkateNation is qualified to do business as a foreign corporation;
(j) the Seller shall have delivered to the Buyer a good standing certificate in respect of each of SkateNation's Subsidiaries issued by the Secretary of State of their respective jurisdictions of organization and of each state in which each such Subsidiary is qualified to do business as a foreign limited liability company or corporation;
(k) the Buyer shall have received from counsel to the Seller an opinion in form and substance as set forth in Exhibit E attached hereto, addressed to the Buyer and Family Golf, 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 SkateNation other than those whom the Buyer shall have specified to the Seller in writing at least five Business Days prior to the Closing;
(m) the Buyer shall have received from Seller an affidavit in form and substance as set forth in Exhibit F attached hereto regarding Seller's status as a non-foreign corporation;
(n) all respects;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 have been reviewed by and be reasonably satisfactory in form and substance to ▇▇▇▇▇ & ▇▇▇▇▇, LLP, counsel for the Buyer and Family Golf; and
(o) Seller shall have delivered to Buyer an unaudited consolidated balance sheet and statements of operations for SkateNation and its Subsidiaries as of and for the one month period ending on the Effective Date (the "Effective Date Financial Statements") together with a certificate containing representations as to such financial statements that are substantially similar to the representations with respect to the unaudited financial statements set forth in Section 4.08 hereof. The Buyer and Family Golf may waive any condition specified in this Section 7.01 if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationCONDITIONS TO OBLIGATION OF ▇▇▇▇▇ ENTERPRISES AND THE ▇▇▇▇▇ STOCKHOLDERS. Buyer’s The obligation of ▇▇▇▇▇ Enterprises and the ▇▇▇▇▇ Stockholders to consummate the transactions to be performed by him, her or it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3 Sections 3(a) and (b) above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such Date (other than representations and warranties are qualified by the term “material,” or contain terms such which speak as “Material Adverse Effect” or “Material Adverse Change,” in of another date, which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Datesuch date);
(ii) Sellers the Turecamo Stockholders and the Turecamo Entities shall have performed and complied with all of the their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers the Turecamo Stockholders and Division the Turecamo Entities shall have procured all of the third-material third party consents specified in §5(bSection 4(b)(i) aboveand (vi) to be procured by them;
(iv) the Parties shall have received all other material authorizations, consents, and approvals of the Governmental Authorities referred to in Section 4(b), and none of the terms or conditions of any such authorization, consent or approval shall (A) prevent consummation of any of the transactions contemplated by this Agreement or by the Ancillary Agreements, (B) cause any of the transactions contemplated by this Agreement or by the Ancillary Agreements to be rescinded following consummation, (C) affect materially adversely the right of ▇▇▇▇▇ Enterprises to own the Turecamo Stock, the ▇▇▇▇▇ Stock or the stock of any of the Subsidiaries of ▇▇▇▇▇ and to control any of the Turecamo Entities, ▇▇▇▇▇, ▇▇▇▇▇ Enterprises or any Subsidiaries of ▇▇▇▇▇ (or any of their respective assets), (D) affect materially adversely the right of any of the Turecamo Entities, ▇▇▇▇▇ or any Subsidiaries of ▇▇▇▇▇ or ▇▇▇▇▇ Enterprises to own its assets and to operate its businesses, or (E) be materially burdensome to ▇▇▇▇▇ Enterprises or any of its Subsidiaries or any of the Turecamo Entities;
(v) no action, suit, or proceeding shall be pending or or, to the Knowledge of the Parties, threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction Governmental Authority or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this AgreementAgreement or by the Ancillary Agreements, (B) cause any of the transactions contemplated by this Agreement or by the Ancillary Agreements to be rescinded following consummation, (C) affect materially adversely affect the right of Buyer ▇▇▇▇▇ Enterprises to own the Acquired Assets Turecamo Stock, the ▇▇▇▇▇ Stock or the stock of any of the Subsidiaries of ▇▇▇▇▇ and to control any of the Turecamo Entities, ▇▇▇▇▇, or any Subsidiaries of ▇▇▇▇▇ (or any of their respective assets), (D) affect materially adversely the right of any of the Turecamo Entities, ▇▇▇▇▇ or any Subsidiaries of ▇▇▇▇▇ or ▇▇▇▇▇ Enterprises to own its assets and to operate the former business of Divisionits businesses, or (DE) have a Material Adverse Effect;
be materially burdensome to ▇▇▇▇▇ Enterprises or any of its Subsidiaries or any of the Turecamo Entities (v) there shall not have beenand no such injunction, judgment, order, decree, ruling, or the occurrence of any events which could reasonably charge shall be expect to have, a Material Adverse Effectin effect);
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement Turecamo Stockholders and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers Turecamo Entities shall have delivered to Buyer a ▇▇▇▇▇ Enterprises certificates of each Turecamo Stockholder (as to such Turecamo Stockholder) and an officers' certificate of the Chairman, President and Chief Financial Officer (in such capacity and not individually) of each Turecamo Entity to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 6(a)(i)-(v) is satisfied in all respects;
(vii) no action shall have been instituted by the Department of Justice or Federal Trade Commission or any state attorney general or other state official having jurisdiction challenging or seeking to enjoin the consummation of the transactions contemplated hereby, which action shall not have been withdrawn or terminated;
(viii) each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have executed an employment and non-competition agreement in the form of Exhibits C-1 through C-4, respectively, hereto;
(ix) ▇▇▇▇▇ Enterprises shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Turecamo Stockholders and the Turecamo Entities, and from Georgia counsel and maritime counsel reasonably acceptable to ▇▇▇▇▇ Enterprises, opinions in form and substance as set forth in Exhibit D attached hereto, addressed to ▇▇▇▇▇ Enterprises, and dated as of the Closing Date;
(x) ▇▇▇▇▇ Enterprises shall have received, at ▇▇▇▇▇ Enterprises' expense, from environmental consultants, environmental assessments with respect to the present and former businesses and real property (owned and leased) of the Turecamo Entities located in Charleston, South Carolina and Savannah, Georgia, in substance reasonably satisfactory to ▇▇▇▇▇ Enterprises, provided that ▇▇▇▇▇ Enterprises shall not have any drilling or testing performed at such locations without the prior consent of the Turecamo Entities (it being understood that, upon request by the Turecamo Entities, ▇▇▇▇▇ Enterprises shall, prior to Closing, provide updates of the progress of any such assessments);
(xi) ▇▇▇▇▇ Enterprises shall have received, at ▇▇▇▇▇ Enterprises' expense, from consultants, engineers or employees of ▇▇▇▇▇ Enterprises, assessments with respect to the Turecamo Vessels in substance reasonably satisfactory to ▇▇▇▇▇ Enterprises;
(xii) there shall not have been any occurrence, event, incident, action, failure to act, or transaction since the Most Recent Fiscal Year End which has had or is reasonably likely to cause a Turecamo Material Adverse Effect;
(xiii) by September 21, 1998, ▇▇▇▇▇ Enterprises shall have completed its business, accounting and legal due diligence review of the Turecamo Entities and the Turecamo Business, including contacts with key customers, and the results thereof shall be reasonably satisfactory to ▇▇▇▇▇ Enterprises;
(xiv) the Turecamo Entities and the lessor of the Leased Real Property located in Savannah, Georgia shall have entered into a new, arms'-length lease reasonably satisfactory in form and substance to ▇▇▇▇▇ Enterprises, and sufficient to evidence such lease of record;
(xv) ▇▇▇▇▇ Enterprises shall have received such pay-off letters, termination statements, releases of ship mortgages and other releases to be delivered against repayment by ▇▇▇▇▇ Enterprises of the Indebtedness of the Turecamo Entities as it shall have reasonably requested, all in form and substance satisfactory to the lender(s) to ▇▇▇▇▇ Enterprises (in their sole discretion) and reasonably satisfactory to ▇▇▇▇▇ Enterprises (it being understood that no such pay-off letters, termination statements and releases shall be required to be delivered in the absence of repayment by ▇▇▇▇▇ Enterprises of the relevant underlying Indebtedness of the Turecamo Entities; PROVIDED, HOWEVER, that in no event shall this Section 6(a)(xv) be construed to require repayment by the Turecamo Entities or ▇▇▇▇▇ Enterprises of any guarantees by any of the Turecamo Entities of any Indebtedness or other obligations of the Related Parties, as to which Section 6(a)(xxv) shall apply);
(xvi) ▇▇▇▇▇ Enterprises shall have received UCC, judgment lien and tax lien searches with respect to the Turecamo Stockholders and the Turecamo Entities, the results of which indicate no liens on the Turecamo Stock or on the assets of the Turecamo Entities (it being understood that if the results of lien searches reveal liens with respect to Indebtedness of the Turecamo Entities that will be paid off and terminated at Closing (all such Indebtedness listed on Sections (m) and (n) of the Turecamo Disclosure Schedule) or liens which are satisfactory to the lender(s) to ▇▇▇▇▇ Enterprises in their sole discretion, the presence of such liens shall not negate satisfaction of this condition 6(a)(xvi));
(xvii) each of the Turecamo Entities shall have delivered (i) copies of the Certificate of Incorporation of each Turecamo Entity, including all amendments thereto, certified by the Secretary of State of the state of its jurisdiction of incorporation; (ii) certificates from the Secretary of State of the state of its jurisdiction of incorporation to the effect that each Turecamo Entity is in good standing and subsisting in such jurisdiction and listing all charter documents of the Company on file in such state; (iii) a certificate from the Secretary of State or other appropriate official in each state in which each Turecamo Entity is qualified to do business to the effect that each Turecamo Entity is in good standing in such state; and (iv) a certificate as to the Tax status of each Turecamo Entity from the appropriate official in the state of its jurisdiction of incorporation and each state in which each Turecamo Entity is qualified to do business, in each case, dated as of a date not more than five days prior to the Closing Date.
(xviii) ▇▇▇▇▇ Enterprises shall have obtained on terms and conditions reasonably satisfactory to ▇▇▇▇▇ Enterprises financing in the amount set forth in the draft Commitment Letter, dated July 9, 1998, attached hereto as Schedule 6(a)(xviii).
(xix) Columbia Coastal shall have executed and delivered a right of first refusal agreement, in form and substance reasonably satisfactory to ▇▇▇▇▇ Enterprises, pursuant to which Columbia Coastal shall agree that ▇▇▇▇▇ Enterprises and its Subsidiaries shall have a first refusal right to provide all of the tug services requirements of Columbia Coastal on market terms (it being understood that neither ▇▇▇▇▇ Enterprises nor ▇▇▇▇▇ have reviewed the Towage Agreement between Columbia Coastal Transport and Maritime, as executed by Maritime on June 15, 1998 and countersigned by Columbia Coastal Transport on July 27, 1998, and that they do not hereby acknowledge whether such Towage Agreement is reasonably satisfactory and that it is possible that such right of first refusal agreement may amend, supplement, replace or terminate such Towage Agreement);
(xx) the relevant parties shall have executed amendments, waivers or terminations of any Contracts listed on Section (o) and Section (v) of the Turecamo Disclosure Schedule in order to ensure that such Contracts are on arms'-length terms or are terminated, as applicable;
(xxi) each Turecamo Stockholder and the Escrow Agent (as applicable) shall have executed and delivered the Stockholders Agreement, the Cash Escrow Agreement and the Stock Escrow Agreement and each Turecamo Stockholder (and each spouse thereof who is an employee of a Turecamo Entity), Columbia Coastal, Turecamo Properties, Ltd. and a newly formed Turecamo entity (the "DISTRIBUTION ENTITY", and together with each Turecamo Stockholder, Columbia Coastal, and Turecamo Properties, Ltd., the "RELATED PARTIES") shall have executed a Release in the form of Exhibit E attached hereto;
(xxii) the Restated Certificate shall have been accepted for filing by the Secretary of State of the State of Delaware;
(xxiii) the Balance Sheet Distributions shall have been effected in a manner and pursuant to the agreements (collectively, the "DISTRIBUTION AGREEMENT") reasonably satisfactory to ▇▇▇▇▇ Enterprises, including that the assets being distributed are accepted by the Distribution Entity, subject to all Liabilities associated therewith;
(xxiv) ▇▇▇▇▇ Enterprises shall be reasonably satisfied that neither ▇▇▇▇▇ Enterprises nor any of the Turecamo Entities will be subject to or responsible for any Excluded Liabilities (it being understood that, upon request by the Turecamo Entities, ▇▇▇▇▇ Enterprises shall, prior to Closing, provide updates as to the progress of any analysis of the Excluded Liabilities);
(xxv) the relevant Related Parties, the Turecamo Entities and the relevant lending institutions or counterparties shall have executed and delivered releases or terminations, at no cost to the Turecamo Entities or to ▇▇▇▇▇ Enterprises, with respect to all guarantees of Indebtedness or other obligations of the Related Parties by the Turecamo Entities;
(xxvi) all agreements between the Related Parties and the Turecamo Entities or among the Related Parties, the Turecamo Entities and any third party (other than agreements delivered at the Closing or agreements for the provision of services at arms-length terms or pursuant to the agreement referred to in clause (xix) above) shall have been terminated;
(xxvii) ▇▇▇▇▇ Enterprises and the Turecamo Entities shall have received written confirmation, in form and substance reasonably satisfactory to ▇▇▇▇▇ Enterprises, from Columbia Coastal that the Turecamo Entities do not owe any amounts to Columbia Coastal as of the Closing, except for amounts that may be owed to Columbia Coastal in connection with the claims or litigation disclosed on Exhibit A to the Release by Columbia Coastal attached as Exhibit E hereto;
(xxviii) the White Stack Stockholders' Agreement, dated December, 1983, among the Turecamo Stockholders, shall have been terminated;
(xxix) any advance to ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. or any Related Party shall have been paid in full, or arrangements for the payment in full of such amount at the Closing shall have otherwise been made;
(xxx) ▇▇▇▇▇ Enterprises shall have received acknowledgement from the Turecamo Entities that the insurance policies listed in Section (q) of the Turecamo Disclosure Schedule will continue in full force and effect after giving effect to the transactions contemplated hereby (or, in the case of Protection and Indemnity and Hull insurance, substantially equivalent replacement coverage reasonably satisfactory to ▇▇▇▇▇ Enterprises shall be in effect); and
(xxxi) all actions to be taken by the Turecamo Stockholders and the Turecamo Entities in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to ▇▇▇▇▇ Enterprises. ▇▇▇▇▇ Enterprises and the ▇▇▇▇▇ Stockholders may waive any condition specified in this Section 6(a) if they execute a written instrument so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Buyer’s Obligation. Buyer’s Obligation of the Buyers The obligation of the Buyers to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3 3(a) above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers shall have performed and complied with all of the covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely affect the right of Buyer the Buyers to own the Acquired Assets Target Shares and to operate control the former business of DivisionTarget and its Subsidiaries, or (D) have a Material Adverse Effect;
affect adversely the right of any of the Target and its Subsidiaries to own its assets and to operate its businesses (v) there shall not have beenand no such injunction, judgment, order, decree, ruling, or the occurrence of any events which could reasonably charge shall be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”effect);
(viiiiii) Sellers the Seller shall have delivered to Buyer the Buyers a certificate to the effect that each of the conditions specified above in §7(a)(i)-(vii7(a)(i)-(ii) is satisfied in all respects;
(iv) the Parties shall have entered into the License Agreement; and
(v) the Buyers shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than one director specified by Seller which director shall hold office for a minimum of one year from the date of closing and then hold office until Target holds its annual meeting. The Buyers may waive any condition specified in this §6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Innovative Software Technologies Inc)
Conditions to Obligation to Close. (a) a. Conditions to Buyer’s Obligation. Buyer’s Obligation of the Purchaser: The obligation of -------------------------------------------- the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) i. the representations and warranties set forth in §3 Sec.4 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers . the Company and the Shareholders shall have performed and complied with all of the their respective covenants hereunder in all material respects through the Closing, except to ;
iii. the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers Company shall have performed and complied with obtained all of such covenants (as so written, including the term “material” or “Material”) in all respects through necessary third party consents before the ClosingClosing Date;
(iii) Sellers and Division 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, rulingstipulation, injunction, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (C) C)affect adversely affect the right of Buyer the Purchaser to own the Acquired Assets Company Shares and to operate exercise all rights as a shareholder of the former business of DivisionCompany (and no such judgment, order, decree, stipulation, injunction, or (D) have a Material Adverse Effectcharge shall be in effect);
(v) v. there shall not have beenbeen elected to the Board of Directors, or the occurrence following slate of any events which could reasonably be expect to havemembers: John French, a Material Adverse EffectJohn Spr▇▇▇▇▇▇, ▇▇▇ry ▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇;
(vi▇▇. The Shareholders' Agent Agreement, attached as Exhibit 10(p) there and as described in Section 10(p) shall not have beenbeen executed and delivered by the Shareholders and the Shareholders' Agents, or as contemplated therein;
vii. There shall have been delivered to Purchaser the occurrence legal opinion of any events which could reasonably be expected to haveEgger Betts Austin PL▇▇, an adverse change or impact ▇o▇▇▇▇▇ ▇▇▇ ▇▇e Shareholders, with respect to Sellers the matters set forth in Sections 4(a),(d) and (e);
viii. all actions to be taken by the Company or Buyer the Shareholders in connection with the CSS Claim;
(vii) this Agreement and consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the Amendment transactions contemplated hereby will be satin, factory in form and substance to the Purchaser; and
ix. the Purchaser and its agents and representatives shall have been approved had the opportunity to complete a due diligence investigation of the business, assets, liabilities, properties and adopted by financial condition and prospects of the stockholders Company and its subsidiaries, including without limitation, a review of Parent the Financial Statements, books and records, products, inventory, customers, suppliers, facilities, employment matters, intellectual property ownership and stock records of the Company, and the Purchaser shall be completely satisfied, in accordance its sole discretion, with the laws results of the State of Delaware (the “Stockholder Approval”);
(viiiits due diligence investigation. The Purchaser may waive any condition specified in this Sec. 8(a) Sellers shall have delivered to Buyer if it executes a certificate writing so stating at or prior to the effect that each of the conditions specified above in §7(a)(i)-(vii) is satisfied in all respects;Closing.
Appears in 1 contract
Sources: Stock Purchase and Subscription Agreement (Upgrade International Corp /Fl/)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of I-trax and the Holding Company. Buyer’s The obligation of I-trax and the Holding Company to consummate the transactions to be performed by it each of them in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3 Section 4 and Section 6 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers the Members shall have performed and complied with all of the their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers MyFamilyMD and Division its Subsidiaries shall have procured all of the third-third party consents specified in §5(bSection 7(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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect materially and adversely affect the right of Buyer the Holding Company to own the Acquired Assets MyFamilyMD Interests and to operate the former business of Divisioncontrol MyFamilyMD and its Subsidiaries, or (D) have be deemed a Material Adverse EffectEvent;
(v) there shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers Members shall have delivered to Buyer I-trax a certificate to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 9(a)(i)-(iv) is satisfied in all respects;
(vi) the Merger shall have been effected pursuant to the Merger Agreement;
(vii) the Holding Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall have entered into an Employment Agreement in the form attached hereto as Exhibit D;
(viii) I-trax and the Holding Company shall have received from counsel to the Members an opinion in form and substance as set forth in Exhibit E attached hereto, addressed to I-trax and the Holding Company, and dated as of the Closing Date;
(ix) the Holding Company and the Members shall have entered into a Registration Rights Agreement in the form attached hereto as Exhibit G;
(x) the Holding Company shall have received the resignations, effective as of the Closing, of each director, manager and officer of MyFamilyMD and its Subsidiaries other than those whom I-trax shall have specified in writing at least five (5) business days prior to the Closing;
(xi) all outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, or other contracts or commitments that could require MyFamilyMD to issue, sell, or otherwise cause to become outstanding any of its equity interests identified in Section 6(b) of the Disclosure Schedule shall have been exercised or terminated and cancelled;
(xii) all outstanding or authorized equity appreciation, phantom stock, profit participation, or similar rights with respect to MyFamilyMD identified in Section 6(b) of the Disclosure Schedule shall have been terminated and cancelled;
(xiii) the Holding Company shall have received a statement from MyFamilyMD in form satisfactory to Holding Company, signed by the Members under penalties of perjury no earlier than 30 days before the Closing Date, certifying (A) that fifty percent (50%) or more of the value of the gross assets of MyFamilyMD does not consist of "U.S. real property interests" (as defined in Section 897(c) of the Code, hereinafter "USRPI") and (B) that ninety percent (90%) or more of the value of the gross assets of MyFamilyMD does not consist of USRPI, cash and cash equivalents;
(xiv) the Registration Statement shall have been declared effective by the SEC;
(xv) the Members shall have complied with their obligations under Paragraphs 1, 5 and 6 of that certain side letter agreement entered into as of the date hereof (the "Side Letter") by and among the Members, MyFamilyMD and I-trax; and
(xvi) all actions to be taken by the Members in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to I-trax and the Holding Company. I-trax and/or the Holding Company may waive any condition specified in this Section 9(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Contribution and Exchange Agreement (I Trax Com Inc)
Conditions to Obligation to Close. (a) 6.01 Conditions to Obligation of the Parent and the Buyer’s Obligation. Buyer’s The obligation of the Parent and the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(ia) the The representations and warranties set forth in §3 Article III above (taken collectively and individually) shall be true and correct in all material respects at and as of the date of the Agreement, and such representation and warranties (taken collectively and individually) shall be true and correct in all material respects at and as of the Closing Date, except without giving any effect to any amendment to the extent that such representations and warranties are qualified Disclosure Schedule delivered by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including Seller to the term “material” or “Material”) shall be true and correct in all respects at and as Buyer after the date of the Closing Datethis Agreement;
(iib) Sellers The Seller shall have performed and complied with all of the its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the ClosingClosing Date;
(iiic) Sellers and Division The Seller shall have procured all of the third-third party consents specified in §5(b) Section 5.02 above;
(ivd) 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (Bii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (Ciii) affect adversely affect the right of the Parent or the Buyer to own the Acquired Assets and Assets, or to operate the former business businesses of Divisionthe Seller (and no such injunction, judgment, order, decree, ruling, or (D) have a Material Adverse Effect;
(v) there charge shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”effect);
(viiie) Sellers The Seller shall have obtained the Required Seller Shareholder Vote specified in Section 5.03 above;
(f) ▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, in their capacities as Co-Chief Executive Officers of the Seller, ▇▇. ▇▇▇▇▇ ▇. Cox, in his capacity as Chairman and Chief Technology Officer of the Seller, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in his capacity as Chief Financial Officer of the Seller, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, in his capacity as President of the Cox Recorders Division shall have delivered to the Parent and the Buyer a certificate in form and substance as set forth in Exhibit K attached hereto to the effect that each of the conditions specified above in §7(a)(i)-(viiSections 6.02(a) through (e) is satisfied in all respectsrespects and covering in reasonable detail the amount, if any, of Aggregate Annual Revenues attributable to Lost Customers;
(g) The Seller's Secretary shall have executed and delivered to the Parent and the Buyer a certificate in form and substance as set forth in Exhibit L attached hereto regarding the Seller's authorizing resolutions and incumbency of officers;
(h) The Seller shall have executed and delivered to the Parent and the Buyer a certificate in form and substance as set forth in Exhibit M attached hereto to the effect that Net Revenues, calculated in good faith, as of the Effective Time, are at least $8,000,000;
(i) The Seller shall have executed and delivered the ▇▇▇▇ of Sale, and all additional transfer documents required to validly assign to the Parent or the Buyer, in recordable form, all of the Acquired Assets;
(j) The Seller shall have executed and delivered the Assumption, and all additional transfer documents required for the Parent and Buyer to validly assume the Assumed Liabilities;
(k) The Seller shall have delivered to the Parent and the Buyer releases of any Security Interests identified in Section 3.04 of the Disclosure Schedule (including, but not limited to the Security Interests of Technology Investors), together with termination statements, discharges and the like in recordable form, or agreements from such secured parties in form acceptable to the Parent and the Buyer to provide such releases, termination statements, discharges and the like upon receipt of the payments specified in such agreements;
(l) The Seller shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3.03 above;
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of the Purchaser. Buyer’s The obligation of Purchaser to consummate the transactions to be performed by it the Purchaser in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties of Seller and set forth in §3 Section 4 above and the Company in Section 5 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers Seller and the Company shall have performed and complied with all of the their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers Seller and Division Company, as necessary, shall have procured all of the third-third party consents specified required or asked of it in §5(b) aboveorder to effect the Closing;
(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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely affect the right of Buyer the Purchaser to own the Acquired Assets Shares and to operate eventually control the former business of DivisionCompany, or (D) have a Material Adverse Effectaffect adversely the right of the Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(v) there Seller shall not have beendelivered to Purchaser a certificate to the effect that (A) each of the conditions specified above in Section 11(a)(i)-(iv) is satisfied in all respects, and (B) as of the Closing, the Company has only those Liabilities listed in Exhibit “A” or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effectmodified as indicated Schedule A hereto;
(vi) there Purchaser shall not have beencompleted the business, or accounting and legal due diligence review of the occurrence of any events which could reasonably Company, and the results thereof shall be expected satisfactory to havePurchaser, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claimits officers and directors;
(vii) the Company shall have delivered its Articles of Incorporation and By-Laws, each as amended to the Closing Date, certified by the Secretary of the Company, resolutions adopted by the Board of Directors of Seller authorizing this Agreement and the transactions contemplated hereby certified by the Secretary of the Seller, and the Amendment Seller shall have been approved and adopted by delivered to Purchaser, to the stockholders of Parent in accordance with the laws extent available, copies of the State of Delaware (the “Stockholder Approval”);Company’s original minute book and corporate seal and all other original corporate documents and agreements; and
(viii) Sellers shall have delivered all actions to Buyer a certificate be taken by Seller and 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 will be satisfactory in form and substance to Purchaser. Purchaser may waive any condition specified in this Section 11(a) at or prior to the effect that each of Closing in a writing executed by the conditions specified above in §7(a)(i)-(vii) is satisfied in all respects;Purchaser.
Appears in 1 contract
Sources: Stock for Stock Exchange Agreement
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of I-trax, Acquisition and Acquisition LLC. Buyer’s The obligation of I-trax, Acquisition and Acquisition LLC to consummate the transactions to be performed by it each of them respectively in connection with the Closing is subject to satisfaction of the following conditions:
(i) this Agreement and the First Merger shall have received the Requisite Stockholder Approval;
(ii) CHDM shall have procured all of the third party consents specified in Section 5(b) above;
(iii) the representations and warranties set forth in §3 Sections 4 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing DateDate and the aggregate negative financial impact of all matters or events added to the CHDM Disclosure Schedule since the date of execution of this Agreement must not exceed $250,000;
(iiiv) Sellers CHDM shall have performed and complied with all of the its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division shall have procured all of the third-party consents specified in §5(b) above;
(ivv) no action, suit, or proceeding shall be pending or threatened against CHDM or any of its Subsidiaries before any court or quasi-judicial or administrative agency of any federalFederal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely affect the right of Buyer I-trax to own the Acquired Assets capital stock of the First Merger Surviving Corporation and all of the equity interest of the Second Merger Surviving Company and to operate control the former business of DivisionFirst Merger Surviving Corporation and the Second Merger Surviving Company, or (D) have a Material Adverse Effect;
affect adversely the right of each of CHDM and its Subsidiaries to own its assets and to operate its businesses (v) there shall not have beenand no such injunction, judgment, order, decree, ruling, or the occurrence of any events which could reasonably charge shall be expect to have, a Material Adverse Effectin effect);
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers CHDM shall have delivered to Buyer I-trax a certificate to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 6(a)(i)-(v) is have been satisfied in all respects, together with a exhibit identifying all amendments to the CHDM Disclosure Schedule;
(vii) CHDM shall have delivered to I-trax a certificate of CHDM's Secretary attaching, and certifying that each such attachment is true, correct, complete and in effect on the Closing Date: (A) CHDM's Certificate of Incorporation, (B) CHDM's Bylaws, (C) resolutions of the Board of Directors of CHDM with respect to all transactions contemplated by this Agreement; and (D) resolutions or minutes of meeting of CHDM Stockholders approving this Agreement and the First Merger, and (E) a good standing certificate issued by the Secretary of State of the State of Delaware date not more than five days prior to the Closing Date;
(viii) CHDM shall have delivered to I-trax a certificate stating that each officer of CHDM executing this Agreement and all related agreements and certificates is an incumbent officer of CHDM;
(ix) CHDM, I-trax and Acquisition shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Sections 5(b) and 5(c) above;
(x) I-trax shall have received from counsel to CHDM an opinion in form and substance as set forth in Exhibit I attached hereto, addressed to I-trax and dated as of the Closing Date;
(xi) I-trax shall have received the resignations, effective as of the Closing, of each director of CHDM, and of each officer of CHDM other than those whom I-trax shall have specified, after consultation with CHDM, in writing at least five business days prior to the Closing;
(xii) I-trax shall have closed the sale of I-trax Preferred Shares the gross proceeds of which are not less than $15,000,000 pursuant to the agreements referred to in Section 5(e) above;
(xiii) I-trax shall have filed the I-trax Preferred Designations with the Secretary of State of the State of Delaware;
(xiv) Acquisition LLC and each employee of CHDM deemed key in the reasonable discretion of I-trax and CHDM Representative shall have entered into employment agreements on mutually acceptable terms;
(xv) I-trax, the CHDM Representative and the Escrow Agent shall have entered into the Escrow Agreement in form and substance substantially as attached hereto as Exhibit E hereto;
(xvi) CHDM shall have delivered a certificate of CHDM's Chief Financial Officer stating the cash balance of CHDM and its Subsidiaries as of the Closing Date computed in accordance with Section 2(b) above;
(xvii) I-trax shall have determined, in the exercise of its reasonable judgment, that issuance of I-trax Common Shares and I-trax Preferred Shares will qualify for exemption from registration under Section 4(2) of the Securities Act and the regulations promulgated thereunder;
(xviii) I-trax and CHDM shall have closed on a senior loan facility pursuant to which not less than $16,000,000 is available to be borrowed by I-trax and CHDM on the Closing Date;
(xix) The waiting period applicable to the consummation of the Merger under the Hart-Scott-Rodino Act shall have expired or been terminated;
(xx) CHDM and its Subsidiaries shall have caused any of its employee that have borrowed money from CHDM or its Subsidiaries to repay such loans; and
(xxi) All actions to be taken by CHDM in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to I-trax. I-trax may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Merger Agreement (I Trax Inc)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of the Buyer and the Merger Subsidiary. Buyer’s --------------------------------------------------------------- The obligation of the Buyer and the Merger Subsidiary to consummate the transactions to be performed by it them in connection with the Closing is subject to satisfaction of the following conditions:
(i) this Agreement and the Merger shall have received the Requisite Shareholders Approval and the number of Dissenting Shares shall not exceed 5% of the number of outstanding Company Shares;
(ii) the representations and warranties set forth in §3 (S) 4 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(iiiii) Sellers the Company and its Subsidiaries shall have performed and complied with all of the their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iiiiv) Sellers the Company and Division its Subsidiaries shall have procured all of the third-party consents specified in §(S) 5(b) and (c) above;
(ivv) 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) materially adversely affect the right of the Buyer to own the Acquired Assets capital stock of the Surviving Corporation and to operate control the former business of DivisionSurviving Corporation and its Subsidiaries, or (D) have a Material Adverse Effect;
(v) there shall not have beenmaterially adversely affect the right of any of the Surviving Corporation and its Subsidiaries to own its assets and to operate its businesses other than any such action, suit, or proceeding arising from any claim relating to the occurrence matter set forth in paragraph 2 of any events which could reasonably Schedule 4(u) of the Disclosure Schedules (and no such injunction, judgment, order, decree, ruling, or charge shall be expect to have, a Material Adverse Effectin effect);
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers Company shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in §7(a)(i)-(vii(S) 7(a)(i)-(v) is satisfied in all respects;
(vii) the Buyer Shares that will be issued in the Merger, and those required to be reserved for issuance in connection with the Merger, shall have been approved for listing on the Nasdaq National Market, subject to official notice of issuance;
(viii) the Company, and its Subsidiaries shall have received all authorizations, consents, and approvals of governments and governmental agencies referred to in (S) 4(d) above;
(ix) the relevant parties shall have entered into the Shareholders Agreement attached hereto as Exhibit A, the Escrow Agreement in form and substance as set forth in Exhibit D, the Registration Rights Agreement in form and substance as set forth in Exhibit F, and the Employment Agreement in form and substance as set forth in Exhibits G attached hereto, and each of the same shall be in full force and effect as against such parties;
(x) the Buyer shall have received from counsel to the Company 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;
(xi) the Buyer shall not be required to issue more than 4,800,000 Buyer Shares (as such number of Buyer Shares is adjusted downward by the number of Buyer Shares issuable upon the exercise or conversion of the Company Stock Rights (other than the options under the Company Option Plan) assumed by the Buyer in the Merger in accordance with (S) 2(d)(vii) above) in connection with the transactions contemplated hereby;
(xii) (A)(x) the Buyer shall be reasonably satisfied based upon consultation with its counsel and receipt of a satisfactory number of Accredited Investor Statements from the shareholders of the Company indicating that the offering and issuance of the Buyer Shares as contemplated by this Agreement is in compliance with Rule 506 under the Securities Act, or (y) pursuant to (S) 5(c), the Buyer and the Company shall have received from the California Department of Corporations a Permit for the solicitation and issuance of the Buyer Shares to the shareholders of the Company in the Merger in accordance with this Agreement and the issuance of the Merger Consideration by the Buyer in accordance with this Agreement will be exempt from registration with the Securities and Exchange Commission pursuant to Section 3(a)(10) of the Securities Act, as the case may be, and (B) no other filings, approvals, registrations, or qualifications (other than post-Closing filings and registrations) are required under applicable federal or state securities laws for the consummation of the Merger in accordance with this Agreement;
(xiii) the Buyer Share Price is equal to or greater than $10.50; provided, however, this closing condition set forth in this -------- ------- (S) 7(a)(xiii) shall not apply in the event that the Company's Board of Directors agrees that for purposes of this Agreement and the transactions contemplated hereby, the Buyer Share Price is deemed to be $10.50, notwithstanding the actual average closing price per Buyer Share on the Nasdaq National Market;
(xiv) all actions to be taken by the 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 will be reasonably satisfactory in form and substance to the Buyer;
(xv) the Company and its Subsidiaries shall have obtained and delivered to the Buyer a written consent for the assignment of each of the Leases if required (the "Lease Consents"), in form and substance -------------- reasonably satisfactory to the Buyer;
(xvi) 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 reasonably satisfactory to Buyer (the "Estoppel Certificates"); ---------------------
(xvii) the Company and its Subsidiaries shall deliver to Buyer a non-foreign affidavit dated as of the Closing Date and in form and substance required under the Treasury Regulations issued pursuant to Section 1445 of the Internal Revenue Code so that the Buyer is exempt from withholding any portion of the Merger Consideration hereunder (the "FIRPTA ------ Affidavit"); ---------
(xviii) no damage or destruction or other change has occurred with respect to any of the Leased 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 Leased Real Property or the operation of the Company's or its Subsidiary's business as currently conducted thereon. The Buyer may waive any condition specified in this (S) 7(a) for itself and on behalf of the Merger Subsidiary if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Therma Wave Inc)
Conditions to Obligation to Close. (a) 6.1 Conditions to BuyerMulti-Financial’s ObligationObligation to Close. Buyer’s Multi-Financial's obligation to consummate the transactions to be performed by it in connection with the Closing this transaction is subject to satisfaction of the following conditions:
(i) the representations and warranties of the Legacy Parties set forth in §3 above this Agreement shall be true true, complete and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers the Legacy Parties shall have performed and complied with all of the their covenants and obligations hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the ClosingTransfer Date;
(iii) Sellers and Division 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 Governmental Authority or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by terms or conditions of this Agreement, (B) cause any of the transactions contemplated by this Agreement terms or conditions to be rescinded following consummation, or (C) affect adversely affect the right of Buyer Multi-Financial to own the Acquired Assets Legacy Transferred Accounts or Bank Transferred Accounts (and to operate the former business of Divisionno such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(Div) all applicable waiting and/or notice periods (and any extensions thereof) required by the SEC or under the NASD Rules shall have a Material Adverse Effectexpired or otherwise terminated and all necessary and appropriate approvals or consents of governmental or regulatory bodies or other third parties, including, but not limited to, the Bank Clients with respect to the Bank Networking Agreements and the prior approval, if required, of the NASD shall have been received;
(v) there Multi-Financial shall not have been, or completed to its satisfaction its due diligence investigation and transaction audit of the occurrence of any events which could reasonably be expect to have, a Material Adverse EffectLegacy Parties;
(vi) there Legacy shall not have been, filed a notice in accordance with NASD Rule 1017 describing this Transaction to the extent deemed necessary or appropriate and shall have received approval from the occurrence NASD for ongoing registration for receipt of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer compensation in connection accordance with the CSS Claim;Transactions, and as deemed necessary, for approval related to the bulk transfer of accounts; and Representative and Account Multi-Financial Securities Corporation/▇▇▇▇▇/Legacy May 31, 2007 Transfer Agreement
(vii) this Agreement and the transactions contemplated hereby and the Amendment Legacy shall have been approved obtained an extended reporting endorsement to its current errors and adopted omissions policy (policy no. A02050592400 issued by the stockholders of Parent in accordance with the laws of the State of Delaware Clarendon America Insurance Company) (the “Stockholder ApprovalPolicy”);
(viii) Sellers , which endorsement shall have delivered to Buyer extend the Policy’s coverage for a certificate to period ending, at a minimum, on the effect that each ninetieth day following the fourth anniversary of the conditions specified above in §7(a)(i)-(vii) is satisfied in all respects;Measurement Date.
Appears in 1 contract
Conditions to Obligation to Close. (a) 7.1 Conditions to Buyer’s ObligationObligation of the Parent and Merger Sub. Buyer’s obligation The obligations of the Parent and the Merger Sub to consummate the transactions to be performed by it each in connection with the Closing is are subject to satisfaction of the following conditions:
(ia) the representations and warranties set forth in §Section 3 above shall of this Agreement will be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “"material" and "Material Adverse Effect” or “Material Adverse Change,” " in which case such representations and warranties (as so written, including the term “material” or “Material”) shall will be true and correct in all respects at and as of the Closing Date;
(iib) Sellers shall the Target and Principal Stockholders will have performed and complied with all of the his, her or its covenants hereunder contained in this Agreement in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “"material" and "Material Adverse Effect” or “Material Adverse Change,” " in which case Sellers shall have such covenants will be performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through at and as of the ClosingClosing Date;
(iiic) Sellers and Division shall the Target will have procured all of the thirdnecessary third party consents, authorizations and approvals, all of which must be final and non-party appealable, including without limitation any consents specified in §5(b) aboverequired under any of the Leases;
(ivd) 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: (Ai) prevent consummation of any of the transactions contemplated by this Agreement, ; (Bii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, ; (Ciii) affect adversely affect the right of Buyer the Parent to own Target Stock and to control the Acquired Assets Target; or (iv) affect adversely the right of the Target to own its assets and to operate the former its business of Division(and no such injunction, judgment, order, decree, ruling or (D) have a Material Adverse Effect;
(v) there shall not have been, or the occurrence of any events which could reasonably charge will be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”effect);
(viiie) Sellers shall each of the Target and Principal Stockholders will have executed and delivered to Buyer the Parent a certificate to the effect that each of the conditions specified above in §7(a)(i)-(viithis Section 7.1(a) to (d) is satisfied in all respects;
(f) the Parties will have received all other necessary authorizations, consents and approvals of any Governmental Authority, all of which must be final and non-appealable;
(g) the relevant parties will have entered into the Escrow Agreement, which must be in full force and effect;
(h) the relevant parties will have entered into the Paying Agent Agreement, which must be in full force and effect;
(i) the Target will have delivered to the Parent written resignations from all of the incumbent officers, directors or persons holding similar positions of the Target;
(j) the Target will have delivered to the Parent a properly executed statement and corresponding notice to the Internal Revenue Service dated as of the Closing Date in a form reasonably acceptable to the Parent so that the holders of the Target Stock are exempt from withholding under Treasury Regulation Section 1.1445-2(c)(3);
(k) each of the Principal Stockholders will have entered into releases releasing the Target and its successors from any employment-related and certain other Liabilities, which releases must be satisfactory to the Parent and in full force and effect;
(l) each Person who will, as of the Closing Date, hold outstanding unvested options to purchase Common Stock under the Target Option Plan, that will not be Vested Options or Unvested Options, will have entered into an option cancellation agreement and release releasing the Target and its successors from any and all Liabilities in connection with such outstanding unvested options, which must be in full force and effect;
(m) the Parent will have received from outside counsel to the Target a legal opinion substantially in the form of the attached Exhibit F, addressed to the Parent, and dated as of the Closing Date;
(n) the Target will have delivered a certified copy of all board of directors, stockholder and other corporate resolutions authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement;
(o) the Target will have delivered a certified copy of resolutions of the board of directors of the Target substantially in the form of the attached Exhibit G, authorizing the termination of the Target's 401(k) Plan;
(p) the Target will have issued Preferred Stock and Warrants to Sheikh Khaled Bin Zayed Al Nehayan in exchange for the conversion, cancellation and delivery of that certain Promissory Note and Credit Facility/Loan Agreement, dated February 26, 2003, between the Target and Sheikh Khaled; (q) there will not have occurred any Material Adverse Effect with respect to the Target;
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to BuyerPurchaser’s Obligation. BuyerPurchaser’s obligation to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the The representations and warranties set forth in §3 Section 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Closing Date, and no breach of the representations and warranties, individually or in the aggregate, will cause a Material Adverse Effect except to the extent that such representations and warranties are qualified by the term terms “material” or “Material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers and Company shall have performed and complied with all of the their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term terms “material,” or “Material” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers Company and Division 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, to the Knowledge of the Company and its Subsidiaries or any of the 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) adversely affect the right of Buyer Purchaser to own the Acquired Assets Shares and to operate the former business of Divisioncontrol Company and its Subsidiaries, or (D) have a Material Adverse Effectadversely affect the right of Company or any of its Subsidiaries to own its assets and to operate its business (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(v) there shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers Company shall have delivered to Buyer Purchaser a certificate to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 7(a)(i)-(iv) is satisfied in all respects;
(vi) all applicable waiting periods (and any extensions thereof) under the H▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or otherwise been terminated and the Parties, Company, and its Subsidiaries 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;
(vii) the relevant parties shall have executed the amendment relating to the waiver of prepayment penalties in form and substance as set forth in Exhibits C attached hereto and the same shall be in full force and effect;
(viii) Purchaser shall have received from counsel to Company and Sellers an opinion in form and substance reasonably satisfactory to Purchaser dated as of the Closing Date;
(ix) Purchaser shall have received the resignations, effective as of the Closing, of each director of Company and its Subsidiaries other than those whom Purchaser shall have specified in writing prior to the Closing;
(x) all actions to be taken by 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 be reasonably satisfactory in form and substance to Purchaser;
(xi) Purchaser shall have obtained, or received evidence of already existing, title policies and surveys for all Owned Real Property of the Company and its Subsidiaries, in all cases in form and substance reasonably satisfactory to the Purchaser;
(xii) Company and its Subsidiaries shall have obtained and delivered to Purchaser a written consent with respect to the transactions contemplated by this Agreement for each of the Leases set forth on Schedule 4(e)(ii) which may require a consent from the other party to the Lease pursuant to the terms thereof, and, if requested by Purchaser’s lender, a waiver of landlord liens, collateral assignment of lease or leasehold mortgage from the landlord or other party whose consent thereto is required under such Lease (the “Lease Consents”), in form and substance reasonably satisfactory to Purchaser and Purchaser’s lender;
(xiii) Company and its Subsidiaries shall have executed mutual releases with each Seller and each director and officer of the Company and Subsidiaries;
(xiv) Sellers and the Company shall have delivered to Purchaser a properly executed statement from the Company satisfying the requirements of Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) in a form reasonably acceptable to Purchaser (the “FIRPTA Affidavit”);
(xv) no damage or destruction or other change has occurred with respect to any of the Real Property or any portion thereof that, individually or in the aggregate, would materially impair the use or occupancy of the Real Property or the operation of Company’s or its Subsidiaries’ business as currently conducted thereon;
(xvi) Company and Subsidiaries shall have delivered to Purchaser copies of the certificate of incorporation or formation, as applicable, certified on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of each such Person’s incorporation (or formation);
(xvii) Company and Sellers shall have delivered to Purchaser copies of the certificate of good standing of each entity Seller, Company, and Company Subsidiary issued on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of each such Person’s organization;
(xviii) Company and Sellers shall have delivered to Purchaser a certificate of the secretary or an assistant secretary of each of entity Sellers, dated the Closing Date, in form and substance reasonably satisfactory to Purchaser, as to: (i) the resolutions of the board of directors or other authorizing body (or a duly authorized committee thereof) of such Seller authorizing the execution, delivery, and performance of this Agreement and the transactions contemplated hereby; and (ii) incumbency and signatures of the officers of such Seller executing this Agreement or any other agreement contemplated by this Agreement; and
(xix) The executive officers of the Company or any Subsidiary shall have waived their rights to any payments of compensation or vesting of stock awards or options to the extent that such payment or vesting would result in an excess parachute payment within the meaning of Section 280G of the Code. Purchaser may waive any condition specified in this Section 7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Buyer’s Obligation. Buyer’s of Obligation of the Purchaser The obligation of the Purchaser to consummate the transactions to be performed by it the Purchaser in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers each of the Pre-Closing Covenants set forth above shall have been satisfied;
(iii) the Selling Parties shall have performed and complied with all of the their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely affect the right of Buyer the Purchaser to own the Acquired Assets Selling Parties Shares and to operate control the former business of DivisionCompany, or (D) have a Material Adverse Effect;
affect adversely the right of the Company to own its assets and to operate its businesses (v) there shall not have beenand no such injunction, judgment, order, decree, ruling, or the occurrence of any events which could reasonably charge shall be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”effect);
(viii) Sellers The Purchaser shall have delivered received the resignations, effective as of the Closing Date, of each officer and Director of the Company, currently R. ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the appointment of the designee(s) of the Purchaser. In addition, each officer and director shall waive any accrued compensation if any due said officers and directors as of the closing date. Said resignations shall be effective 10 days after the Purchaser files a Form 14f with the Securities and Exchange Commission.
(ix) Except as otherwise set forth in this Agreement, there shall not have been any occurrence, event, incident, action, failure to Buyer act, or transaction which has had or is reasonably likely to cause a certificate material adverse effect on the business, assets, properties, financial condition, results of operations or prospects of the Purchaser;
(x) The Purchaser has completed its business, accounting and legal Due Diligence review of the Company, and the results thereof are completely satisfactory to the effect that each Purchaser;
(xi) the Purchaser shall deliver to selling parties a Certificate of Good Standing of the conditions Purchaser issued by the Nevada Secretary of State dated no earlier than sixty (60) days prior to the Closing.
(xii) all actions to be taken by the Selling Parties in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Purchaser; and The Purchaser may waive any condition specified above in §7(a)(i)-(viithis Section 13(a) is satisfied at or prior to the Closing in all respects;writing executed by the Purchaser.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationEach Party's Obligations. Buyer’s obligation The respective obligations of each Party to consummate the transactions to be performed by it in connection with the Closing is contemplated herein are subject to the satisfaction of the following conditions:
(i) This Agreement shall have been approved by: (A) the representations Seller's Board of Directors, (B) Seller Subs' Board of Directors, (C) the Seller Shareholder, (D) Seller Subs' shareholder, (E) the Buyer's Board of Directors, (F) the Acquisition Sub's Board of Directors and warranties set forth in §3 above shall be true and correct in all material respects at and as of (G) the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing DateAcquisition Sub's shareholder;
(ii) Sellers No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the transactions contemplated herein or limiting or restricting Buyer's or Acquisition Sub's conduct or operation of the business of Buyer and/or Acquisition Sub after the Closing shall have performed and complied with all been issued, nor shall any proceeding brought by any Governmental Entity, seeking any of the covenants hereunder in all material respects through the Closingforegoing be pending; nor shall there have been any action taken, except or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the extent that such covenants are qualified by sale of the term “material,” Acquired Assets which makes or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all would make the consummation of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;transactions contemplated herein illegal; and
(iii) Sellers and Division The Parties shall have procured obtained all of necessary consents and approvals from all Government Entities and Third Parties, including, if necessary and without limitation, ICANN's consent to 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) adversely affect the right of Buyer to own the Acquired Assets and to operate the former business of Division, or (D) have a Material Adverse Effect;
(v) there shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers shall have delivered transfer from Seller to Buyer a certificate to of Seller's ICANN accreditation under the effect that each of the conditions specified above in §7(a)(i)-(vii) is satisfied in all respects;ICANN Agreement.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Buyer’s Obligation. Buyer’s of Obligation of the Purchaser The obligation of the Purchaser to consummate the transactions to be performed by it the Purchaser in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3 Sections 6 and 7 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers each of the Pre-Closing Covenants set forth in Section 11, above shall have been satisfied;
(iii) the Selling Parties shall have performed and complied with all of the their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iiiiv) Sellers and Division the Company shall have procured all of the third-third party consents specified required in §5(b) aboveorder to effect the Closing;
(ivv) 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely affect the right of Buyer the Purchaser to own the Acquired Assets Sellers Shares and to operate control the former business of DivisionCompany, or (D) have a Material Adverse Effect;
affect adversely the right of the Company to own its assets and to operate its businesses (v) there shall not have beenand no such injunction, judgment, order, decree, ruling, or the occurrence of any events which could reasonably charge shall be expect to have, a Material Adverse Effectin effect);
(vi) there the Selling Parties shall not have beendelivered to the Purchaser a certificate to the effect that (A) each of the conditions specified above in Section 13(a)(i)-(v) is satisfied in all aspects, or and (B) as of the occurrence of any events which could reasonably be expected to haveClosing, an adverse change or impact with respect to Sellers or Buyer except as otherwise provided in connection with this Agreement, the CSS ClaimCompany has no Liabilities;
(vii) the Purchaser shall have received an opinion of counsel customary for transactions of this type that covers, among other things, that the Sellers Shares being delivered pursuant to this Agreement were validly issued, are fully paid and non-assessable and are being delivered to the Purchaser in a private transaction not involving any public offering in compliance with applicable Federal and state securities laws.
(viii) the Purchaser shall have received the resignations, effective as of the Closing Date, of each current director of the Company and the Purchaser shall have received the resignations, effective as of the Closing Date, of each officer of the Company. The Board of Directors of the Purchaser shall direct that the Designees specified by the Purchaser and named and described in Form 14f-1, as filed with the SEC shall be appointed as Directors of the Company and any officers of the Company who may be lawfully appointed to the newly designated Board of Directors of the Company shall be nominated and elected;
(ix) Except as otherwise set forth in this Agreement, there shall not have been any occurrence, event, incident, action, failure to act, or transaction since January 31, 2007 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;
(x) The Purchaser has fully completed its business, accounting and legal Due Diligence review of the Company, and the results thereof are completely satisfactory to the Purchaser;
(xi) the Purchaser shall have received such pay-off letters and releases relating to Liabilities as they shall have requested and such pay-off letters shall be in form and substance satisfactory to the Purchaser;
(xii) the Purchaser 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;
(xiii) 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, resolutions adopted by the Board of Directors of the Company authorizing this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers Company shall have delivered to Buyer a certificate the Purchaser the Company’s original minute book and corporate seal and all other original corporate documents and agreements;
(xiv) the Company shall deliver to the effect that each Purchaser a Certificate of Good Standing in respect of the conditions Company issued by the Delaware Secretary of State dated no earlier than sixty (60) days prior to the Closing.
(xv) all actions to be taken by the Selling Parties in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Purchaser; and
(xvi) At the Closing, there shall be no more than 1,112,525 shares of the Company issued and outstanding other than shares held by the Purchaser on a pro-forma basis under this Agreement. The Purchaser may waive any condition specified above in §7(a)(i)-(viithis Section 13(a) is satisfied at or prior to the Closing in all respects;writing executed by the Purchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement (Air Brook Airport Express Inc)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of the Purchaser. Buyer’s The obligation of the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) Each of the conditions set forth in the Real Property Purchase Contract shall have been satisfied, and, simultaneously with the Closing, the Purchaser and the Shareholders shall consummate the transactions to be performed by them pursuant to the Real Property Purchase Contract;
(ii) the Purchaser shall be reasonably satisfied with the results of its continuing business, legal, environmental, and accounting due diligence, including, without limitation, its review or evaluation of any matter addressed in any section of the Disclosure Schedule regarding the Seller and the Cattle Business;
(iii) the representations and warranties set forth in §Article 3 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(iiiv) Sellers each of the Seller, Shareholders, and Key Employees shall have performed and complied with all of the its, his or her covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iiiv) Sellers and Division the Seller shall have procured all of the third-material third party consents specified in §Section 5(b) above;
(ivvi) 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (C) affect adversely affect the right of Buyer the Purchaser to own the Acquired Purchased Assets and to operate the former business of Division, or (D) have a Material Adverse Effect;
(v) there shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;Cattle Business.
(vii) this Agreement and the transactions contemplated hereby and the Amendment Seller shall have been approved paid all Income Taxes and adopted Sales Taxes owed by the stockholders of Parent Seller, as set forth in accordance with the laws Section 3(k) of the State of Delaware (the “Stockholder Approval”);Disclosure Schedule.
(viii) Sellers the Seller shall have delivered to Buyer the Purchaser a certificate executed by its President to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 6(a)(iii)-(vi) is satisfied in all respects;
(ix) the Purchaser shall have received all other material authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3(c) and Section 4(c) above;
(x) the employment agreements as set forth in Exhibits A-1 and A-2 attached hereto shall be in full force and effect (or will be in full force and effect as of the Closing Date);
(xi) the Seller shall have provided to the Purchaser, at the Purchaser's sole cost and expense, audited balance sheets and statements of income, changes in stockholders' equity, and cash flow as of and for the fiscal years ended December 31, 1997, 1998 and 1999 for the Seller, which financial statements (including the notes thereto) shall be prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby; and
(xii) all actions to be taken by the Seller, Shareholders, and Key Employees in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Purchaser. The Purchaser may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Emerge Interactive Inc)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of DS&P and Acquisition. Buyer’s The obligation of DS&P and Acquisition to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) other than the representations and warranties set forth in §3 4(k), the representations and warranties set forth in Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers ▇▇▇▇▇▇ shall have performed and complied with all of the its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers ▇▇▇▇▇▇ and Division its Subsidiaries shall have procured all of the third-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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely affect the right of Buyer DS&P to own the Acquired Assets shares of the Surviving Corporation and to operate the former business of Divisioncontrol ▇▇▇▇▇▇ and its Subsidiaries, or (D) have a Material Adverse Effectaffect adversely the right of any of ▇▇▇▇▇▇ and its Subsidiaries to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(v) there the representations and warranties set forth in Section 4(k) shall not have beenbe true and correct in all material respects as of the Closing Date; provided that, if prior to Closing, (i) an audit is commenced by any taxing authority, a Tax or adjustment is asserted by any taxing authority, or an error is discovered relating to any Return that was or should have been filed by ▇▇▇▇▇▇ for which the occurrence statute of any events which limitations is not closed and the maximum amount of Tax that ▇▇▇▇▇▇ or the Surviving Corporation could reasonably owe as a result thereof is less than $750,000 or (ii) the Closing Basis is $28,000,000 or more, then the representations and warranties in Section 4(k) shall be expect deemed not to havehave been breached, a Material Adverse Effectand the Tax Liability Reserve will be increased as provided herein;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers ▇▇▇▇▇▇ shall have delivered to Buyer DS&P a certificate to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 6(a)(i)-(v) is satisfied in all respects;
(vii) all applicable waiting periods (and any extensions thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or otherwise been terminated and the Parties shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Section 4(c) above;
(viii) the relevant parties shall have entered into Employment Agreements contemplated in Section 5(k);
(ix) DS&P shall have received from ▇▇▇▇▇▇'▇ corporate and bankruptcy counsel opinions in form and substance as set forth in Exhibit D attached hereto, addressed to DS&P, Acquisition and Lender and dated as of the Closing Date;
(x) all actions to be taken by ▇▇▇▇▇▇ in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to DS&P;
(xi) the Plan, the Confirmation Order, and the Liquidating Trust documents shall be in form and substance satisfactory to DS&P in its reasonable discretion and in accordance with Section 7 below;
(xii) no Material Adverse Change in ▇▇▇▇▇▇'▇ or its Subsidiaries' business, results of operations, financial condition, assets, liabilities or prospects has occurred since the Most Recent Balance Sheet;
(xiii) the Confirmation Order has become a Final Order;
(xiv) the Surviving Corporation shall have obtained the New Debt Financing;
(xv) the New Debt Financing shall be available pursuant to documents which are satisfactory to DS&P and Acquisition in their sole discretion;
(xvi) ▇▇▇▇▇▇ shall provide DS&P with a list and copy of all confidentiality agreements not previously disclosed to DS&P prior to Closing;
(xvii) at least two business days prior to the Closing, ▇▇▇▇▇▇ shall provide DS&P a schedule setting forth the following information on an estimated pro forma basis giving effect to the consummation of the transactions contemplated herein for ▇▇▇▇▇▇ and its Subsidiaries: (A) the Closing Basis; (B) the amount of any net operating loss carryover; (C) the amount of cancellation or indebtedness income and the other income, gain or loss resulting from the transactions contemplated herein including, but not limited to, the disposition of assets or stock of any Subsidiary and, if requested by DS&P or Acquisition, the additional information included in Section 4(k)(vi) not included in this Section 6(a)(xii);
(xviii) at least two business days prior to the Closing, ▇▇▇▇▇▇ shall provide to DS&P, in form satisfactory to DS&P, (A) a written reconciliation of the trust records for the 401(k) Plan with the participant statement records, (B) a schedule, by each 401(k) Plan participant, of each participant who has or had ▇▇▇▇▇▇ Shares in a Restricted Stock Account, the number of ▇▇▇▇▇▇ Shares in such account, the cost basis to such participant of each ▇▇▇▇▇▇ Share, the amounts distributed to the participant from such account, and an explanation of how the amount of any distribution was determined, and (C) any other information necessary to calculate the amounts to be paid to the 401(k) Plan under Section 2(f)(ii);
(xix) ▇▇▇▇▇▇ shall have caused the litigation known as SouthTrust Bank, N.A. ▇. ▇▇▇▇▇▇ Color-Fi, Inc., Bankruptcy Case No. 98-10145W to be terminated, resolved or settled in a manner which is fully satisfactory to DS&P in its reasonable discretion; and
(xx) that certain Agreement between JFM and ▇▇▇▇▇▇ dated February __, 2000 is approved by the Bankruptcy Court, or, if such agreement is not approved by the Bankruptcy Court, the Plan and the Final Order shall state that the Surviving Corporation shall have no liabilities or obligations with respect to JFM and that all liabilities or obligations owed to JFM by ▇▇▇▇▇▇ shall be satisfied solely by the Plan Administrator from the Preliminary Purchase Price. DS&P may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of Investor. Buyer’s The obligation of Investor to consummate the transactions to be performed by it in connection with the Closing is subject to the satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in §3 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers The Company shall have performed and complied with all of the its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the ClosingClosing Date;
(iii) Sellers The Company and Division its Subsidiaries shall have procured all of the third-any third party consents specified in §Section 5(b) aboveabove and shall deliver to the Investor the following documents, each of which shall be appropriately executed other than by the Investor: (A) a Voting Agreement in the form of ▇▇▇▇▇▇▇ "▇" ▇▇▇▇▇▇, (▇) a Certificate of Contingent Interest as described in Section 6(c) in the form of Exhibit "C" hereto; (C) Employment Agreements in the form of Exhibit "D" hereto from each of the Company's executive officers, and (D) an opinion of the Company's legal counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, in the form of Exhibit "E" hereto;
(iv) no action, suit, or proceeding shall be pending or threatened have been instituted before any court or quasi-judicial or administrative agency of any national, federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) adversely affect the right of Buyer to own the Acquired Assets and to operate the former business of Division, or (D) have a Material Adverse Effect;
(v) there The Company shall not have beendelivered to Investor audited consolidated and audited consolidating balance sheets and statements of income, or changes in stockholders' equity, and cash flows as of and for the occurrence of any events which could reasonably be expect to haveseven (7) months ending July 31, a Material Adverse Effect;1997 for the Company (the "Updated Financial Statements").
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers The Company shall have delivered to Buyer Investor a certificate to the effect that (A) each of the conditions specified above in §7(a)(i)-(viiSection 8(a)(i)-(iv) is (other than the deliveries under Section 8(a)(iii)) are satisfied in all respects;, and (B) the Company is not aware of any material modifications to the Updated Financial Statements necessary to make those statements not false or misleading; and
(vii) all applicable waiting periods (and any extensions thereof) under applicable law shall have expired or otherwise been terminated and the Company and its Subsidiaries shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Section 5(b) relating to the Company and its Subsidiaries. The Investor may waive any condition specified in this Section 8(a) if it executes a writing so stating at or prior to the Closing. At the Closing, assuming the satisfaction, or waiver by the Investor, of the conditions set forth in this Section 8(a), the Investor shall deliver to the Company the Purchase Price.
Appears in 1 contract
Sources: Stock Purchase Agreement (Wireless Cable & Communications Inc)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of Parent and the Parent Subsidiary. Buyer’s The obligation of each of Parent and the Parent Subsidiary to consummate the transactions to be performed by it in connection with the Closing Merger is subject to satisfaction or waiver by Parent or Parent Subsidiary of the following conditionsconditions at or prior to the Closing Date:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Target and its Subsidiaries shall have procured all of the third party consents specified in Section 3(c) above;
(iii) the representations and warranties set forth in §Section 3 and Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(iiiv) Sellers the Target shall have performed and complied with all of the its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iiiv) Sellers and Division neither any Law or Governmental Order shall be enacted, promulgated, entered, enforced or deemed applicable to the Merger nor any other action 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 been taken by 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 Governmental Entity (A) prevent that prohibits the consummation of any of the transactions contemplated by this Agreement, ; (B) cause that prohibits Parent's or the Parent Subsidiary's ownership or operation of all or any portion of their or the Target's business or assets, or which compels Parent or the Parent Subsidiary to dispose of or hold separate all or any portion of Parent's or the Parent Subsidiary's or the Target's business or assets as a result of the transactions contemplated by this Agreement to be rescinded following consummation, Agreement; (C) adversely affect that makes the right of Buyer to own the Acquired Assets and to operate the former business of Divisionpurchase of, or payment for, some or all of the Target Shares illegal; (D) have a Material Adverse Effect;
that imposes limitations on the ability of Parent or the Parent Subsidiary to acquire or hold or to exercise effectively all rights of ownership of Target Shares, including, without limitation, the right to vote any Target Shares purchased by Parent on all matters properly presented to the Stockholders; or (vE) there shall not have beenthat imposes any limitations on the ability of Parent or the Parent Subsidiary, or any of their respective Subsidiaries, effectively to control in any respect the occurrence business or operations of the Target or any events which could reasonably be expect to have, a Material Adverse Effectof its Subsidiaries;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers Target shall have delivered to Buyer Parent and the Parent Subsidiary a certificate to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 6(a)(i) - 6(a)(v) is satisfied in all respects;
(vii) all applicable waiting periods (and any extensions thereof) under the Hart-Scott-Rodino Act shall have expired or otherwis▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇;
(viii) the Parent and the Parent Subsidiary shall have received from counsel to the Target an opinion in form and substance as set forth in Exhibit I attached hereto, addressed to the Parent and the Parent Subsidiary, and dated as of the Closing Date;
(ix) the Parent and the Parent Subsidiary shall have received from counsel to the Target that is reasonably acceptable to Parent and its counsel an opinion concerning regulatory matters in form and substance reasonably acceptable to Parent and its counsel, addressed to the Parent and the Parent Subsidiary, and dated as of the Closing Date;
(x) the Parent and the Parent Subsidiary 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 Parent shall have specified in writing at least five business days prior to the Closing;
(xi) Target and Kenneth G. Baritz shall have delivered to Parent an▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇idiary an executed counterpart of the Escrow Agreement;
(xii) each of the Employment Agreements shall be in full force and effect;
(xiii) the Parent shall have received the Parent Fairness Opinion;
(xiv) the Parent shall have procured all of the third party consents specified in Section 55(c) above;
(xv) the MCG Agreement shall be in full force and effect;
(xvi) the Indemnification Agreement shall be in full force and effect; and
(xvii) all actions to be taken by the Target in connection with consummation of the transactions contemplated by this Agreement and all certificates, opinions, instruments and other documents required to effect the transactions contemplated herein will be reasonably satisfactory in form and substance to the Parent and the Parent Subsidiary. Subject to the provisions of applicable law, Parent and the Parent Subsidiary may waive, in whole or in part, any condition specified in this Section 6(a) if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Merger Agreement (Talk Com)
Conditions to Obligation to Close. (a) Conditions to Buyer’s 's Obligation. Buyer’s 's obligation to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
: (i) the representations and warranties set forth in §3 Section 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
; (ii) Sellers Parent shall have performed and complied with all of the their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
; (iii) Sellers and Division 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) adversely affect the right of Buyer to own the Acquired Assets Target Interests and to operate the former business of Divisioncontrol Target, or (D) have a Material Adverse Effect;
materially and adversely affect the right of Target to own its assets and to operate its business (v) there shall not have beenand no such injunction, judgment, order, decree, ruling, or the occurrence of any events which could reasonably charge shall be expect to have, a Material Adverse Effect;
in effect); (viiv) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 7(a)(i)-(iii) is satisfied in all respects;; (v) the Parties shall have received all other material 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; (vi) Buyer shall have received the resignations, effective as of the Closing, of each director or manager and officer of Target; (vii) Buyer shall have received evidence that the Lawriter and the Casemaker trademarks now being used by Target are owned and titled to Target; (viii) all actions to be taken by Parent in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Buyer; (ix) Parent shall have delivered to Buyer a copy of the certificate of formation, including all amendments to date, of Target, certified on or soon before the Closing Date by the Secretary of State of the jurisdiction of Target’s formation; Page 19 Exhibit 11.1 (x) Parent shall have delivered to Buyer copies of the certificate of existence of Target, issued on or soon before the Closing Date by the Secretary of State of the jurisdiction of Target’s organization; (xi) Pursuant to Section 11(d) of the 2008 Purchase Agreement, Sellers shall have consented in writing to the transactions contemplated under this Agreement, including the assumption by Buyer of those liabilities of Parent to Sellers under Section 2(b)(ii) hereof; (xii) That certain Contract of Sale by and among Parent, Target and Lawcorp dated as of April 1, 2009 shall have been fully performed by Parent and Target, and all rights of the parties released thereto; (xiii) Parent or Target shall have satisfied in full all outstanding payment obligations of Target for legal services owed to ▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, LLC related to the defense of the JuriSearch litigation; (xiv) Buyer, Target and OSBA shall have entered into an Escrow Agreement securing those OSBA obligations assumed by Buyer from Parent pursuant to Section 2(b)(ii) hereof; (xv) [Intentionally left blank] (xvi) Parent and Target shall have entered into a License Agreement for the Parent Assets; (xvii) That certain license agreement with VersusLaw shall have been assigned by Parent to Target; (xviii) Target shall have been released of any and all of its obligations to Alpha Capital Anstalt (“Anstalt”), including, without limitation, that certain Guaranty and Security Agreement entered into by and among Target, Anstalt and others dated March 4, 2009; (xix) Target shall have been released of any and all of its obligations to the Sellers under the 2008 Purchase Agreement, except for the Security Agreement; (xx) All intercompany liabilities between Target and Parent will be converted to capital contributions or otherwise released, including but not limited to, those certain loans in the approximate aggregate amount of $100,000.00 made by Parent to Target; (xxi) Buyer shall have approved that certain schedule of payments and flow of funds submitted by Parent to Buyer; and (xxii) Parent shall have made such other deliveries as are described as being its responsibility in Section 2(e) above. Buyer may waive any condition specified in this Section 7(a) if it executes a writing so stating at or prior to the Closing. (b) Conditions to Parent’s Obligation. Parent’s obligation to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions: (i) the representations and warranties set forth in Section 3(b) above shall be true and correct in all material respects at and as of the Closing Date; (ii) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing; Page 20 Exhibit 11.1 (iii) there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement; (iv) Buyer shall have delivered to Parent a certificate to the effect that each of the conditions specified above in Section 7(b)(i)-(iii) is satisfied in all respects; (v) the Parties, 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) all actions to be taken by Buyer in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Parent; (viii) the dismissal with prejudice by JuriSearch of that certain lawsuit brought by JuriSearch against Target and Parent and the execution of a release by JuriSearch of any and all claims relating thereto; and (ix) Buyer shall have made such other deliveries as are described as being its responsibility in Section 2(e) above. Parent may waive any condition specified in this Section 7(b) if it executes a writing so stating at or prior to the Closing. Section 8. Remedies for Breaches of This Agreement. (a) Survival of Representations and Warranties. All of the representations and warranties of Parent contained in Section 4 above shall survive the Closing hereunder (unless Buyer knew or had reason to know of any misrepresentation or breach of warranty at the time of Closing) and continue in full force and effect for a period of twenty four (24) months thereafter. All of the representations and warranties of the Parties contained in Section 3 above shall survive the Closing (unless the damaged Party knew or had reason to know of any misrepresentation or breach of warranty at the time of Closing) and continue in full force and effect forever thereafter (subject to any applicable statutes of limitations).
Appears in 1 contract
Sources: Limited Liability Company Interest Purchase Agreement
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of AIOP and Parent. Buyer’s obligation The obligations of AIOP and Parent to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3 ss.3 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers FAM shall have performed and complied with all of the its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division FAM shall have procured all of the third-material third party consents specified in §5(bss.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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (C) affect adversely affect the right of Buyer AIOP to own the Acquired Assets and Interests or to operate the former business of Division, or (D) have a Material Adverse EffectNEW FAM;
(v) there shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers FAM shall have delivered to Buyer AIOP a certificate from an executive officer of FAM to the effect that each of the conditions specified above in §7(a)(i)-(viiss.ss.7(a)(i)-(iv) and 7(b)(viii) is satisfied in all respects;
(vi) FAM, AIOP and Parent shall have received all other material authorizations, consents, and approvals of governments and governmental agencies referred to in ss.3(c) and ss.4(c) above;
(vii) the Auditors shall have provided to Parent written confirmation of the amounts of FAM's Cost of Acquiring the Advisory Business;
(viii) prior to the date on which the Proxy Statement is first mailed to the holders of Parent Shares, the Special Committee shall have received the a written opinion from Jefferies & Co., Inc. to the effect that the transactions contemplated by this Agreement are fair to the holders of the Parent Shares from a financial point of view, and such opinion shall not have been withdrawn;
(ix) the transactions contemplated by this Agreement shall have been approved and adopted by the vote of Parent's shareholders at the 1997 annual meeting of shareholders;
(x) all actions to be taken by FAM in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to AIOP;
(xi) FAM shall have furnished AIOP with a certificate that FAM is not a foreign person within the meaning of Section 1445 of the Code, which certificate shall meet the requirements of, and be executed in accordance with, Treasury Regulation Section 1.1445-2(b); and
(xii) Parent and AIOP shall have received the written opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ to the effect that the transactions contemplated by 2 of this Agreement will be tax free to Parent and AIOP. AIOP and Parent may waive any condition specified in this ss.6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Asset Contribution Agreement (Asset Investors Corp)
Conditions to Obligation to Close. (a) Conditions to Buyer’s Parent's Obligation. Buyer’s The obligation of Parent to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) this Agreement and the Merger shall have received the Requisite Company Stockholder Approval;
(ii) Company and its Subsidiaries shall have procured all of the third party consents specified in Section 5(b) above;
(iii) 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, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “"material" and "Material Adverse Effect” or “Material Adverse Change,” " in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(iiiv) Sellers Company shall have performed and complied with all of the its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “"material" and "Material Adverse Effect” or “Material Adverse Change,” " in which case Sellers Company shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division shall have procured all of the third-party consents specified in §5(b) above;
(ivv) 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely affect the right of Buyer Surviving Corporation to own the Acquired Assets and former assets, to operate the former business businesses, and to control the former Subsidiaries of DivisionCompany, or (D) have a Material Adverse Effect;
affect adversely the right of any of the former Subsidiaries of Company to own its assets and to operate its businesses (v) there shall not have beenand no such injunction, judgment, order, decree, ruling, or the occurrence of any events which could reasonably charge shall be expect to have, a Material Adverse Effectin effect);
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers Company shall have delivered to Buyer Parent a certificate to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 6(a)(i)-(v) is satisfied in all respects;
(vii) Company shall have received subscriptions under the Company SPA for gross proceeds of at least $2,010,000;
(viii) Company shall have delivered $300,000 to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and Parent shall have issued 300,000 shares of its common stock, to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ effective as of the Closing, as and for his unconditional indemnity to Company, its officers and directors as forth below in paragraph 8 (n).
(ix) all applicable waiting periods (and any extensions thereof) under the securities laws shall have expired or otherwise been terminated and the Parties shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3 and Section 4 above; and
(x) all actions to be taken by 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 will be reasonably satisfactory in form and substance to Parent. Parent may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Merger Agreement (American Basketball Association, Inc.)
Conditions to Obligation to Close. (a) 6.1 Conditions to Buyer’s ObligationObligation of Vesta. Buyer’s --------------------------------- The obligation of each of Vesta Fire and Vesta to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
: (ia) the representations and warranties of AFFC set forth in §3 above this Agreement that are qualified as to materiality or Material Adverse Effect shall be true and correct in all respects, and those not so qualified shall be true and correct in all material respects respects, at and as of the Closing Date, except to the extent provided that such those representations and warranties that are qualified confined by the term “material,” or contain their terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) to a specified date shall be true and correct in all respects at and speak only as of the Closing Date;
such date; (iib) Sellers AFFC shall have performed and complied with all of the its respective covenants and agreements hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers ; (c) there shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division shall have procured all of the third-party consents specified in §5(b) above;
(iv) no action, suit, or proceeding shall 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 (A) prevent in effect preventing consummation of any of the transactions contemplated by this Agreement, ; (Bd) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) adversely affect the right of Buyer to own the Acquired Assets and to operate the former business of Division, or (D) have a Material Adverse Effect;
(v) there shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers AFFC shall have delivered to Buyer Vesta Fire and Vesta a certificate to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 6.1 (a) - (c) is satisfied in all respects;; (e) all approvals, authorizations, and consents from federal and state governmental and regulatory bodies required for the transactions contemplated by this Agreement (including, without limitation, the approval of the transactions contemplated by this Agreement by the Texas Department of Insurance) shall have been obtained and shall be in full force and effect and without conditions or limitations reasonably unacceptable to Vesta Fire and Vesta, and Vesta Fire and Vesta shall have been provided with appropriate evidence, reasonably satisfactory to it and its counsel, of the granting of such approvals, authorizations and consents; (f) Vesta Fire and Vesta shall have received either (i) certificates of compliance (or the equivalent thereof) dated as of a date not more than sixty (60) days prior to the Closing Date, with respect to each of Laurel Life and its Subsidiaries, as to the applicable jurisdictions with respect to which it has a License, or (ii) with respect to those jurisdictions with respect to which no certificate of compliance is received, an officer's certificate from AFFC stating that all reports and Taxes known to be due have been filed and paid and no adverse regulatory actions are pending or have been threatened; (g) Since June 7, 2000, there shall have been (a) no materially adverse change, or development involving a prospective change, in the general affairs, management, shareholders' equity, assets, liabilities, properties, business, operations of AFFC and its Subsidiaries, other than those resulting from (x) a change in general economic or financial conditions in the United States or (y) matters contemplated under this Agreement, and (b) no material change in the manner in which the business of AFFC or its Subsidiaries is conducted other than those resulting from matters contemplated under this Agreement; (h) AFFC and its Subsidiaries shall have given all notices, made all filings and received all authorizations, consents or approvals of all Persons required in order for the Parties to consummate the transactions contemplated by this Agreement, except where the failure to give notice, to file or to obtain such authorization, consent or approval would not materially adversely affect the ability of the Parties to consummate the transactions contemplated by this Agreement or materially affect AFFC or any of its Subsidiaries; (i) Vesta Fire and Vesta shall have received from counsel to AFFC an opinion in form and substance reasonably satisfactory to Vesta Fire and Vesta and their counsel, addressed to Vesta Fire and Vesta, and dated as of the Closing Date; (j) the Investor Rights Agreement, the Employment Agreements and the Exchange Agreement shall have been executed by all parties other than Vesta Fire and Vesta that are parties to such agreements and the transactions contemplated by the Redemption Agreement shall have been consummated either prior to or contemporaneously with the Closing; and (k) all actions to be taken by AFFC and its Subsidiaries in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Vesta Fire, Vesta and their counsel. Vesta Fire and Vesta may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Closing. 6.2
Appears in 1 contract
Sources: Note Purchase Agreement (Vesta Insurance Group Inc)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of the Purchaser and the Purchaser ----------------------------------------------------------- Subsidiary. Buyer’s The obligation of each of the Purchaser and the Purchaser Subsidiary ---------- to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by Purchaser or Purchaser Subsidiary of the following conditionsconditions at or prior to the Closing Date:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Target and its Subsidiaries shall have procured all third-party consents specified in (S)5(b) above which are applicable to the Target and its Subsidiaries;
(iii) the representations and warranties set forth in §3 (S)3 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such for (A) changes contemplated by this Agreement, (B) those representations and warranties are qualified by the term “material,” or contain terms such which address matters only as “Material Adverse Effect” or “Material Adverse Change,” in of a particular date (which case such representations and warranties (as so written, including the term “material” or “Material”) shall be have been true and correct in all respects at and as of the Closing Datesuch date);
(iiiv) Sellers the Target shall have performed and complied with all of the its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iiiv) Sellers and Division shall have procured all of the third-party consents specified in §5(b) above;
(iv) no actionneither any statute, suitrule, 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, judgmentregulation, order, decreestipulation or injunction (each an "Order") shall be enacted, rulingpromulgated, ----- entered, enforced or charge would deemed applicable to the Merger nor any other action shall have been taken by any governmental authority, administrative agency or court of competent jurisdiction (A) prevent which prohibits the consummation of any of the transactions contemplated by this Agreement, the Merger; (B) cause which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by this Agreement to be rescinded following consummation, the Merger; (C) adversely affect which makes the right purchase of, or payment for, some or all of Buyer to own the Acquired Assets and to operate the former business of Division, Target Shares illegal; or (D) have a Material Adverse Effect;
which imposes material limitations on the ability of the Purchaser or the Purchaser Subsidiary to acquire or hold or to exercise effectively all rights of ownership of Target Shares, including, without limitation, the right to vote any Target Shares purchased by the Purchaser on all matters properly presented to the Target Stockholders; or (vE) there shall not have beenwhich imposes any limitations on the ability of the Purchaser or the Purchaser Subsidiary, or any of their respective Subsidiaries, effectively to control in any material respect the occurrence business or operations of the Target or any events which could reasonably be expect to have, a Material Adverse Effectof its Subsidiaries;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers Target shall have delivered to Buyer the Purchaser and the Purchaser Subsidiary a certificate to the effect that each of the conditions specified above in §7(a)(i)-(vii(S)6(a)(i)-(S)6(a)(iv) is satisfied in all respects; provided, however, with respect to (S)6(a)(i), the Target shall only be required -------- ------- to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Target Stockholders;
(vii) all applicable waiting periods (and any extensions thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or otherwise been terminated, and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(viii) the Purchase Warrant shall have been exercised in full, provided, that such exercise may be conditioned upon the effectiveness of -------- the Merger;
(ix) the Purchaser Shares to be issued in the Merger shall have been approved upon official notice of issuance for quotation on Nasdaq, subject to official notice of issuance; and
(x) the Registration Statement shall have been declared effective by the SEC under the Securities Act. No stop order suspending the effectiveness of the Registration Statement shall have been issued by the SEC and no proceedings for that purpose shall have been initiated or threatened by the SEC. Subject to the provisions of applicable law, the Purchaser Subsidiary may waive, in whole or in part, any condition specified in this (S)6(a) if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Merger Agreement (Primus Telecommunications Group Inc)
Conditions to Obligation to Close. (a) Conditions to Buyer’s Obligation. Buyer’s of Obligation of the Purchaser The obligation of the Purchaser to consummate the transactions to be performed by it the Purchaser in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3 Sections 4 and 5 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers each of the Pre-Closing Covenants set forth in Section 8, above shall have been satisfied;
(iii) the Selling Parties shall have performed and complied with all of the their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iiiiv) Sellers and Division the Company shall have procured all of the third-third party consents specified required in §5(b) aboveorder to effect the Closing;
(ivv) 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely affect the right of Buyer the Purchaser to own the Acquired Assets Sellers Shares and to operate control the former business of DivisionCompany, or (D) have a Material Adverse Effect;
affect adversely the right of the Company to own its assets and to operate its businesses (v) there shall not have beenand no such injunction, judgment, order, decree, ruling, or the occurrence of any events which could reasonably charge shall be expect to have, a Material Adverse Effectin effect);
(vi) there the Selling Parties shall not have beendelivered to the Purchaser a certificate to the effect that (A) each of the conditions specified above in Section lO(a)(i)-(v) is satisfied in all aspects, or and (B) as of the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer Closing the Purchaser has no Liabilities and $32,000 in connection with the CSS Claimcash in its bank account;
(vii) the selling parties shall have received an opinion of counsel customary for transactions of this type that covers, among other things, that the Sellers Shares being delivered pursuant to this Agreement were validly issued, are fully paid and non-assessable and are being delivered to the Purchaser in a private transaction not involving any public offering in compliance with applicable Federal and state securities laws.
(viii) the Purchaser shall have received the resignations, effective as of the Closing Date, of each current director of the Company, except Scott Sieck, and the Purchaser shall have received the resignations, ▇▇▇▇▇▇▇▇▇ as of the Closing Date, of each officer of the Purchaser. The Board of Directors of the Purchaser shall direct that the Designees specified by the Purchaser shall be appointed as Directors of the Purchaser and any officers of the Purchaser who may be lawfully appointed to the newly designated Board of Directors of the Purchaser shall be nominated and elected;
(ix) Except as otherwise set forth in this Agreement, there shall not have been any occurrence, event, incident, action, failure to act, or transaction since February 29, 2008 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 Purchaser;
(x) The Purchaser has fully completed its business, accounting and legal Due Diligence review of the Company, and the results thereof are completely satisfactory to the Purchaser;
(xi) the Purchaser shall have received such pay-off letters and releases relating to Liabilities as they shall have requested and such pay-off letters shall be in form and substance satisfactory to the Purchaser;
(xii) the Purchaser shall have conducted judgment lien and tax lien searches with respect to the Company, the results of which indicate no liens on the assets ofthe Company;
(xiii) 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, resolutions adopted by the Board of Directors of the Company authorizing this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers Company shall have delivered to Buyer the Purchaser the Company's original minute book and corporate seal and all other original corporate documents and agreements;
(xiv) the Company shall deliver to the Purchaser a Certificate of Good Standing in respect of the Company issued by the Nevada Secretary of State dated no earlier than ten (10) days prior to the Closing and a certificate of good standing from the state of Florida for foreign corporation ..
(xv) all actions to be taken by the Selling Parties in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the effect that each Purchaser; and
(xvi) At the Closing, there shall be no more than 8,500,000 shares of the conditions Company issued and outstanding other than shares held by the Purchaser on a pro-forma basis under this Agreement. The Purchaser may waive any condition specified above in §7(a)(i)-(viithis Section lO(a) is satisfied at or prior to the Closing in all respects;writing executed by the Purchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement (DoMar Exotic Furnishings Inc.)
Conditions to Obligation to Close. (a) Conditions to Buyer’s Obligation. Buyer’s 's ObligationBuyer's obligation to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(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, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “"material" and "Material Adverse Effect” or “Material Adverse Change,” " in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers Seller shall have performed and complied with all of the its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “"material" and "Material Adverse Effect” or “Material Adverse Change,” " in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division no action, suit or proceeding shall have procured all 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 (A) prevent consummation of any of the third-party consents specified transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the right of Buyer to own Target Shares and to control Target or (D) affect adversely the right of Target to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in §5(b) aboveeffect);
(iv) Seller shall have delivered to Buyer a certificate (in form and substance reasonably acceptable to Buyer) (A) to the effect that each of the conditions specified above in Sections 7(a)(i), (ii) and (iii) is satisfied in all respects and (B) containing with respect to the documents referred to in Sections 5(h), (i), (j), (k), (l), (m), (n) and (o) representations and warranties similar to those set out in the last two sentences of Section 3(s) above.
(v) Buyer shall have received (and Seller shall procure) the resignations, effective as of the Closing, of each director and officer of Target other than those whom Buyer shall have specified in writing at least five business days prior to the Closing;
(vi) each of Eric Berkobin and Paul Raley shall continue to be employed by Target ▇▇ ▇▇▇▇▇ ▇▇▇▇onabl▇ ▇▇▇▇▇▇▇▇tory to Buyer as of the Closing;
(vii) Seller shall have delivered to Buyer copies of the certificate of incorporation of Target certified on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of Target's incorporation;
(viii) Seller shall have delivered to Buyer copies of the certificate of good standing of Target issued on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of each such Person's organization and of each jurisdiction in which each such Person is qualified to do business; and
(ix) Seller shall have delivered to Buyer a certificate of the secretary or an assistant secretary of Target, dated the Closing Date, in form and substance reasonably satisfactory to Buyer, as to (A) no amendments to the Certificate of Incorporation (or formation) of such Person since the date specified in clause (xii) above; (B) the bylaws (or other governing documents) of such Person; and (C) any resolutions of the board of directors or other authorizing body (or a duly authorized committee thereof) of such Person relating to this Agreement and the transactions contemplated hereby.
(x) Seller shall have obtained the consent of its Lenders and appropriate UCC releases. Buyer may, in its sole discretion, waive in writing any condition specified in this Section 7(a).
(b) Conditions to Sellers' ObligationThe obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by terms such as "material" and "Material Adverse Effect," in which case such representations and warranties shall be true and correct in all respects at and as of the Closing Date;
(ii) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as "material" and "Material Adverse Effect," in which case Buyer shall have performed and complied with all of such covenants in all respects through the Closing;
(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 (A) prevent consummation of any of the transactions contemplated by this Agreement, Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummationconsummation (and no such injunction, (C) adversely affect the right of Buyer to own the Acquired Assets and to operate the former business of Divisionjudgment, order, decree, ruling, or (D) have a Material Adverse Effect;charge shall be in effect); and
(viv) there shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers shall have delivered to Buyer Seller a certificate to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 7(b)(i), (ii) and (iii) is satisfied in all respects;
(v) Seller shall have received the consent of its Lenders.
Appears in 1 contract
Conditions to Obligation to Close. (a) Conditions to Buyer’s Obligation. Buyer’s of Obligation of the Purchaser The obligation of the Purchaser to consummate the transactions to be performed by it the Purchaser in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers each of the Pre-Closing Covenants set forth above shall have been satisfied;
(iii) the Selling Parties shall have performed and complied with all of the their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division 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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely affect the right of Buyer the Purchaser to own the Acquired Assets Selling Parties Shares and to operate control the former business of DivisionCompany, or (D) have a Material Adverse Effect;
affect adversely the right of the Company to own its assets and to operate its businesses (v) there shall not have beenand no such injunction, judgment, order, decree, ruling, or the occurrence of any events which could reasonably charge shall be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”effect);
(viii) Sellers The Purchaser shall have delivered received the resignations, effective as of the Closing Date, of each officer and Director of the Company, currently R. Thomas Kidd and Richard Altmann and the appointment of the designee(▇) ▇▇ ▇▇▇ ▇urcha▇▇▇. ▇▇ ▇▇▇▇▇ion, each officer and director shall waive any accrued compensation if any due said officers and directors as of the closing date. Said resignations shall be effective 10 days after the Purchaser files a Form 14f with the Securities and Exchange Commission.
(ix) Except as otherwise set forth in this Agreement, there shall not have been any occurrence, event, incident, action, failure to Buyer act, or transaction which has had or is reasonably likely to cause a certificate material adverse effect on the business, assets, properties, financial condition, results of operations or prospects of the Purchaser;
(x) The Purchaser has completed its business, accounting and legal Due Diligence review of the Company, and the results thereof are completely satisfactory to the effect that each Purchaser;
(xi) the Purchaser shall deliver to selling parties a Certificate of Good Standing of the conditions Purchaser issued by the Nevada Secretary of State dated no earlier than sixty (60) days prior to the Closing.
(xii) all actions to be taken by the Selling Parties in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Purchaser; and The Purchaser may waive any condition specified above in §7(a)(i)-(viithis Section 13(a) is satisfied at or prior to the Closing in all respects;writing executed by the Purchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement (Domark International Inc.)
Conditions to Obligation to Close. (a) Conditions to Obligation of the Buyer’s Obligation. Buyer’s , 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:
(i) the representations and warranties set forth in §3 (S)3(a) and (S)4 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers the Seller shall have performed and complied with all of the their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division the Company shall have procured all of the third-third party consents specified in §5(b(S)5(b) above, including approval of the transfer of ownership by the United States Department of Education, the State of Minnesota and all appropriate institutional and program accrediting bodies, except that such consents may be obtained after the Closing Date, as provided in (S)7(c) herein;
(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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely affect the right of the Buyer to own the Acquired Assets Company Shares and to operate control the former business of DivisionCompany, or (D) have a Material Adverse Effectaffect adversely the right of any of the Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(v) there shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in §7(a)(i)-(vii(S)7(a)(i)- (iv) is satisfied in all respects;
(vi) the Company and the Parties shall have 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 Seller shall have obtained an approval, acceptable to the Buyer of the Buyer's purchase of the Company Shares by (A) the United States Department of Education, including an acceptable assurance of the Company's ability to continue to qualify for Title IV loans after Closing, (B) the State of Minnesota, and (C) all applicable institutional and programmatic accrediting bodies, including the Accrediting Bureau of Health Education Schools ("AABHES"), except that such approvals may be obtained after the Closing Date, as provided in (S)7(c) herein;
(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 Company other than those whom the Buyer shall have specified in writing at least five business days prior to the Closing;
(x) 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
(xi) 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 will be reasonably satisfactory in form and substance to the Buyer. The Buyer may waive any condition specified in this (S)7(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Argosy Education Group Inc)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of the Parent. Buyer’s The obligation of the Parent to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3 Section 4 and Section 5(a) above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) Sellers the Company Indemnifying Parties shall have performed and complied with all of the its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division the Company shall have procured all of the material third-party consents specified in §5(bSection 6(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 charge
would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely affect the right of Buyer the Parent to own the Acquired Assets Company Stock and to operate control the former business of DivisionCompany, or (D) have a Material Adverse Effectaffect materially and adversely the right of the Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(v) there shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers Company Indemnifying Parties shall have delivered to Buyer the Parent a certificate to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 8(a)(i)-(iv) is satisfied in all respects;
(vi) 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 shall have received all authorizations, consents, and approvals of governments and governmental agencies referred to in Section 4(c), Section 5(a)(iii) and Section 5(b)(ii) above;
(vii) the Key Employees shall have entered into, and delivered to the Parent, employee offer letters in form and substance as set forth in Exhibit 5 attached hereto and the same shall be in full force and effect;
(viii) the Parent shall have received from counsel to the Company (or the Company Indemnifying Parties) an opinion (or opinions) in form and substance reasonably satisfactory to it, addressed to the Parent, and dated as of the Closing Date, and such opinion shall specifically opine that the transactions contemplated hereby have been duly authorized by all stockholder action required under the Delaware Act, applicable California law, the Certificate of Incorporation, the bylaws and the Investors' Rights Agreement, that all notices required to be given to shareholders under such laws have been given, that all Stock Options and Warrants have been exercised, cancelled, accelerated, terminated or otherwise have expired and are of no force or effect (except with respect to certain Warrants, which shall no longer be exercisable for any shares or otherwise and that Section 3(b)(ii) above is operative and enforceable in accordance with its terms), and that the Investors' Rights Agreement and the proxy therein is enforceable in accordance with its terms and that the Merger constitutes a "Qualified Corporate Acquisition" as defined therein;
(ix) the Parent shall have received the resignations, effective as of the Closing, of each director and officer of the Company;
(x) the Parent shall have received the Company's minute books and stock registries;
(xi) all Stockholders shall have entered into and delivered to the Parent a certificate in the form attached hereto as Exhibit 4 confirming that (A) they are an Accredited Investor and (B) all existing obligations between the Company and such 44 Persons for borrowed money, advances, and other non-salary, non-wage, non-commission and non-bonus arrangements (other than reimbursements for reasonable expenses incurred in connection with the Company's Board of Directors meetings) have been settled and discharged;
(xii) all Stockholders shall have entered into a written consent of the Company's stockholders in form and substance reasonably acceptable to the Parent authorizing the Merger and the transactions contemplated herein, with at least 80% of the Stockholders entering into the consent directly and not by way of the proxy contained in the Investors' Rights Agreement, and the majority of the Company's stockholders of each other class or series of Company Stock required to approve the Merger shall have entered into such written consent resolution, with at least 50% of the Company's stockholder of each class or series except the Company's Series B Preferred Stock entering into the consent directly and not by way of the proxy contained in the Investors' Rights Agreement;
(xiii) all actions to be taken by the Company Indemnifying Parties in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance, and as relevant delivered, to the Parent;
(xiv) nothing shall have occurred after the date of this Agreement which, in the Parent's reasonable opinion, would have a material adverse effect on the business, financial condition, operations, results of operations, or future prospects of the Company;
(xv) Parent shall have received from the Company a properly executed statement (in such form as may be reasonably requested by counsel to Parent) conforming to the requirements of Treasury Regulation Sections 1.897-2(h)(1)(i) and 1.1445-2(c)(3) and the Company provide evidence (in such form as may be reasonably requested by counsel to Parent) that the Company has delivered to the Internal Revenue Service the notification required under Treasury Regulation Section 1.897-2(h)(2);
(xvi) except for the UCC-1 Financing Statement in favor of BCL Capital relating to leased office equipment, all UCC-1 financing statements naming the Company as debtor shall have been terminated or UCC-3 termination statements, duly executed by the secured parties, shall have been delivered to the Parent with respect to any Security Interests in the Company's assets;
(xvii) all Stock Options and Warrants shall have been exercised, cancelled, accelerated, terminated or otherwise have expired and are of no force or effect (except with respect to certain Warrants, which shall no longer be exercisable for any shares or otherwise);
(xviii) Stockholders holding one hundred percent (100%) of the outstanding Company Series F Preferred Shares as at the Closing shall have tendered delivery of their Company Series F Preferred Shares;
(xix) all individuals receiving Management Bonuses shall have entered into and delivered to the Parent a certificate confirming that all existing obligations between the Company and such individual for borrowed money, advances and other arrangements (other than salary, wages, commissions, bonuses, expense reimbursements (for reasonable expenses incurred in the Ordinary Course of Business) and reimbursements for reasonable expenses incurred in connection with the Company's Board of Directors meetings) have been settled and discharged; and
(xx) the Company shall have entered into the Certificate of Merger. The Parent may waive any condition specified in this Section 8(a) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Merger Agreement (Pivotal Corp)
Conditions to Obligation to Close. (a) 7.1 Conditions to Buyer’s ObligationObligation of the Purchaser. Buyer’s obligation The obligations of the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(ia) the representations and warranties set forth in §3 above Section 4 hereof shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(iib) Sellers the Seller shall have performed and complied with all of the its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iiic) Sellers and Division the Seller shall have procured all of the third-third party consents specified in §5(b) Section 6.2 above;.
(ivd) 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 (Ai) prevent consummation of any of the transactions contemplated by this Agreement, (Bii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (Ciii) affect adversely affect the right of Buyer the Purchaser to own the Acquired Assets and to operate the former business of Divisionown, operate, or control the Assets (D) have a Material Adverse Effect;
(v) there shall not have beenand no such judgment, order decree, stipulation, injunction, or the occurrence of any events which could reasonably charge shall be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”effect);
(viiie) Sellers the Seller shall have delivered to Buyer the Purchaser a certificate (without qualification as to knowledge or materiality or otherwise) to the effect that each of the conditions specified above in §7(a)(i)-(viiSection 7.1(a)-(d) is satisfied in all respectsrespects and certified resolutions of the respective Boards of Directors of Seller and COREStaff, and, if deemed necessary by Seller, its shareholder, to the effect of Section 4.9;
(f) the Purchaser shall have received all other authorizations, consents, and approvals of governments and governmental agencies set forth in this Agreement;
(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 will be in the form and substance as required by this Agreement; and
(h) The Purchaser shall have received from Seller documents necessary to change Seller's name to "TAI Co." and to terminate Seller's filings in California, Colorado and Arizona regarding the use of assumed, fictitious or tradenames relating to the Business, and a check to cover the filing fees for the same. The Purchaser may waive any condition specified in this Section 7 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (International Nursing Services Inc)
Conditions to Obligation to Close. (a) Conditions to Buyer’s Obligation6.1 CONDITIONS TO OBLIGATIONS OF 800 TRAVEL AND MERGER CORP. Buyer’s obligation The obligations of 800 Travel and Merger Corp. to consummate the transactions to be performed by it them in connection with the Closing is are subject to satisfaction of the following conditions:
(ia) the The representations and warranties set forth in §3 SECTION 3.1 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(iib) Sellers The Shareholders shall have performed and complied with all of the their respective covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iiic) Sellers and Division Prestige shall have procured all of the third-necessary third party consents specified in §5(b) aboveconsents;
(ivd) 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 (Ai) prevent consummation of any of the transactions contemplated by this Agreement, (Bii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (Ciii) affect adversely affect the right of Buyer 800 Travel and Merger Corp. to own the Acquired Assets Prestige Shares and to control Prestige, or (iv) affect adversely the right of Prestige to own its assets and to operate the former business of Divisionits businesses (and no such injunction, judgment, order, decree, ruling, or (D) have a Material Adverse Effect;
(v) there charge shall not have been, or the occurrence of any events which could reasonably be expect to have, a Material Adverse Effect;
(vi) there shall not have been, or the occurrence of any events which could reasonably be expected to have, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claim;
(vii) this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”effect);
(viiie) Sellers The Parties shall have delivered to Buyer a certificate to received any and all other necessary authorizations, consents, and approvals of landlords, governments and governmental agencies;
(f) 800 Travel and Merger Corp. shall have received the effect that each resignations, effective as of the Closing, of each director and officer of Prestige;
(g) 800 Travel and Merger Corp. shall have obtained on terms and conditions specified above satisfactory to them in §7(a)(i)-(vii) is satisfied their sole discretion and judgment approvals and consents in all respectsorder to consummate the transactions contemplated hereby;
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (800 Travel Systems Inc)
Conditions to Obligation to Close. (a) Conditions to Buyer’s ObligationObligation of the Purchaser. Buyer’s The obligation of the Purchaser to consummate the transactions to be performed by it the Purchaser in connection with the Closing is are subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3 Section 5 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(ii) the Sellers shall have performed and complied with all of the their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case Sellers shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(iii) Sellers and Division the Company shall have procured all of the third-third party consents specified required in §5(b) aboveorder to effect the Closing;
(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 (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely affect the right of Buyer the Purchaser to own the Acquired Assets Seller Shares and to operate control the former business of DivisionCompany, or (D) have a Material Adverse Effectaffect adversely the right of the Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(v) there the Sellers shall not have beendelivered to the Purchaser a certificate to the effect that (A) each of the conditions specified above in Section 9(a)(i)-(iv) is satisfied in all respects, or and (B) as of the occurrence of any events which could reasonably be expect to haveClosing, a Material Adverse Effectthe Company has no Liabilities;
(vi) there The Purchaser shall not have beenreceived an opinion of counsel to the Sellers providing that all of the Seller Shares were validly issued, or the occurrence of any events which could reasonably be expected to haveare fully paid and non-assessable and were issued in compliance with all laws, an adverse change or impact with respect to Sellers or Buyer in connection with the CSS Claimincluding, without limitation, applicable federal and state securities laws;
(vii) the Purchaser shall have received the resignations, effective as of the tenth (10th) day following the filing by the Company of a Schedule 14f-1 information statement with the Securities and Exchange Commission, of each director of the Company and the Purchaser shall have received the resignations, effective as of the Closing, of each officer of the Company. The designees specified by the Purchaser shall have been appointed as officers of the Company and any designees of the Purchaser who may be lawfully appointed to the Board of Directors of the Company as of the Company shall have been appointed;
(viii) there shall not have been any occurrence, event, incident, action, failure to act, or transaction since April 30, 2009 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) the Purchaser shall have completed their business, accounting and legal due diligence review of the Company, and the results thereof shall be satisfactory to the Purchaser;
(x) the Purchaser shall have received such pay-off letters and releases relating to Liabilities as they shall have requested and such pay-off letters shall be in form and substance satisfactory to the Purchaser;
(xi) the Purchaser 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, resolutions adopted by the Board of Directors of the Company authorizing this Agreement and the transactions contemplated hereby and the Amendment shall have been approved and adopted by the stockholders of Parent in accordance with the laws of the State of Delaware (the “Stockholder Approval”);
(viii) Sellers Company shall have delivered to Buyer a certificate the Purchaser the Company's original minute book and corporate seal and all other original corporate documents and agreements;
(xiii) the Company shall deliver to the effect Purchaser confirmation that each the Company is in Good Standing with the Nevada Secretary of State.
(xiv) the Company shall have maintained at and immediately after the Closing its status as a company whose Common Stock is quoted on the OTB Bulletin Board; and
(xv) all actions to be taken by the Seller in connection with consummation of the conditions transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Purchaser.
(xvi) the Company shall have filed the Form 10-Q for the period ending April 30, 2010 . The Purchaser may waive any condition specified above in §7(a)(i)-(viithis Section 10(a) is satisfied at or prior to the Closing in all respects;writing executed by the Purchaser.
Appears in 1 contract