Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each of the following conditions: 6.2.1 Each representation and warranty of Seller Parent contained in this Agreement shall be true and correct on and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect. 6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect. 6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct. 6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date. 6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer. 6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following: (i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled; (ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary; (iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5; (iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and (v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent. 6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement. 6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer. 6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 3 contracts
Sources: Recapitalization Agreement (Bausch & Lomb Inc), Recapitalization Agreement (Charles River Laboratories Holdings Inc), Recapitalization Agreement (Charles River Laboratories Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are Transactions shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) the representations and warranty warranties of Seller Parent the Company Parties and Sellers contained in this Agreement Article 4 and Article 5 shall be have been true and correct on in all material respects as of the date hereof and as of the Closing Date, provided, however, that with the same force respect to any representations and effect as though warranties that are qualified by materiality or “Company Material Adverse Effect,” or similar references, such representations and warranties had been made on shall be true and correct in all respects as of the date hereof and as of the Closing Date, except ;
(ib) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty Sellers shall have been true duly performed and correct as of such date, and (ii) to the extent that any inaccuracies complied in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them it prior to or on the Closing Date except Date; provided, however, that, with respect to agreements, covenants and conditions that are qualified by materiality, the extent that any breaches of Sellers shall have performed such obligations, agreements, covenants and conditions, individually or as so qualified, in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.all respects;
6.2.3 (c) Buyer shall have received a certificate of Seller Parentcertificate, dated as of the Closing Date and executed signed by an officer each of Seller Parentthe Sellers, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as conditions set forth in the Update, Sections 9.2(a) and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who 9.2(b) shall have been requested to resign by Buyer satisfied;
(d) the Sellers shall have tendered their resignations effective as of delivered, or caused the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory delivery of, all the certificates, instruments, agreements and other documents required to Buyer of receipt of the consents or approvals be delivered to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under Buyer pursuant to Section 3.1;
(or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect toe) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent Sellers shall have delivered audited financial statements of the Company for the fiscal years ended 2012 and 2011, together with unqualified audit reports relating thereto and a consent from the Company’s auditors consenting to the filing of such financial statements in Buyer’s filings with the Securities and Exchange Commission, which consent shall be acceptable to Buyer in all reasonable respects;
(f) no Action shall have been commenced against the Buyer, any of the following:Sellers or the Company Parties, which would prevent or delay the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any of the Transactions;
(g) all approvals, consents (including consents to filings of documents as exhibits to the Buyer’s SEC filings) and waivers that are listed on Schedule 5.4 shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing;
(h) all related party transactions set forth on Schedule 5.22 shall have been terminated (including all related party receivables and payables); and
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closingthis Agreement, in form and substance reasonably satisfactory to Buyerthere shall not have occurred any Company Material Adverse Effect.
Appears in 3 contracts
Sources: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Hi-Crush Partners LP), Membership Interest Purchase Agreement
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are Transactions shall be subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each of the following conditions, any or all of which may be waived, in whole or in part, by Buyer:
6.2.1 Each representation (i) The representations and warranty warranties of Seller Parent contained in this Agreement shall be true and correct on in all material respects at and as of the Closing Date, Date with the same force and effect as though such representations and warranties had been made on and as of such date; provided, however, that for the Closing Datepurpose of determining the accuracy of such representations and warranties that are already qualified by materiality (including by reference to “Material Adverse Effect”), except (i) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty representations and warranties shall have been be true and correct as of such date, and in all respects; (ii) to each and all of the extent that any inaccuracies in such representations agreements and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with satisfied by each of them Seller hereunder at or prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received been duly performed or satisfied in all material respects; and (iii) Seller shall have furnished Buyer with a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained conditions specified in this Agreement Section 7.2(a) is true and correct on satisfied;
(b) Since the Closing Date as if made on such Datedate of this Agreement, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who there shall not have been requested any event, change, circumstance or occurrence that has had or could reasonably be expected to resign by Buyer shall have tendered their resignations effective as of the Closing Date.a Material Adverse Effect;
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect toc) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all a duly executed counterpart to a master tower lease agreement relating to the use by Seller of the followingAssets, including schedules thereto relating to each such tower, substantially in the form attached hereto as Exhibit C and made a part hereof (the “Master Lease”);
(d) Seller shall have delivered to Buyer a duly executed counterpart to the Transition Services Agreement;
(e) Seller shall have delivered the Membership Interests to Buyer;
(f) Seller shall have delivered to Buyer each of the following executed documents, each in customary form reasonably acceptable to Buyer:
(i) stock certificates representing the Purchased Shares. Each such certificate a contribution agreement evidencing the Purchased Shares shall be duly endorsed in blank, contribution of the Assets (other than those relating to Rejected Sites or be accompanied Remedial Sites) to Seller Sub and the assumption by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;Seller Sub of the Assumed Liabilities; and
(ii) all stock certificatesSpecial Warranty Deeds conveying to Seller Sub the Owned Sites, minute booksin forms acceptable for recording in the state and county where each applicable Owned Site is located, stock books, ledgers and registers, corporate seals and together with such other corporate records relating forms as may be required to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiaryrecord such deeds;
(iii) original Any reasonable and customary affidavits reasonably required by, and satisfactory to, the title company in order that an owner’s title insurance policy and any leasehold title insurance policy may be issued free and clear of the standard exceptions which a title company is permitted by applicable law to remove or copies modify upon delivery of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5such affidavits;
(iv) certificates as to the valid existence and good standing A copy of Recap Subco and each Recap Subsidiary which is organized under the Laws resolutions of the United States board of America (or directors of Seller authorizing the execution, delivery and performance of this Agreement and the other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary Collateral Documents by Seller, and an officer’s certificate of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may beSeller, dated as of a date within thirty (30) days of the Closing Date, that such resolutions were duly adopted and are in full force and effect; and
(v) a true assignment and correct copy assumption agreements of the Tower Leases and Site Leases;
(g) Seller shall have delivered to Buyer a FIRPTA certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws in accordance with Section 1445 of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Code certifying that Seller Parent.is not a foreign Person;
6.2.7 (h) Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered the Remedial Site Escrow Agreement, if applicable; and
(i) Seller shall have caused its counsel to deliver to Buyer and its lenders a written legal opinion with respect to the Investors' Agreement.
6.2.8 Buyerexistence, Recap Co due incorporation and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory authority of Seller to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco enter into this Agreement and the Sellers, dated Collateral Documents and to consummate the date of the Closing, in form and substance reasonably satisfactory to Buyertransactions contemplated hereby.
Appears in 3 contracts
Sources: Equity Interest Purchase Agreement (Dobson Communications Corp), Equity Interest Purchase Agreement (Dobson Communications Corp), Equity Interest Purchase Agreement (American Cellular Corp /De/)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate effect the transactions contemplated by this Agreement are Contemplated Transactions shall be subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each Date of the following conditions:
6.2.1 (a) Each representation of the representations and warranty warranties of Seller Parent Sellers contained in this Agreement shall be true and correct on and as of the Closing Date(without giving effect to any Material Adverse Effect, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except (imateriality or similar qualifiers) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct in all material respects on and as of the Execution Date and as of the Closing as if made as of the Closing (except for changes expressly permitted or contemplated by this Agreement and except that the representations and warranties that are made as of a specific date need be true and correct only as of such date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 ). Buyer shall have received a certificate of from each Seller Parent, dated the Closing Date and executed signed by an officer of Seller Parent, thereof with respect to the effect that each foregoing.
(b) The covenants and agreements of the representations and warranties of Seller Parent contained in this Agreement is true and correct Sellers to be complied with or performed on or prior to the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who shall have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 duly complied with or performed in all material respects. Buyer shall have received evidence satisfactory a certificate from each Seller signed by an officer thereof with respect to Buyer of receipt the foregoing.
(c) The Sale Order shall have been entered by the Bankruptcy Court and shall not have been reversed, stayed, modified or amended in any manner materially adverse to Buyer.
(d) Each of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions authorization of the Persons listed on SCHEDULE 6.3(d) shall be have been obtained in form and substance reasonably satisfactory to Buyer.
6.2.6 On (e) All of the Closing Date, Seller Parent material Assumed Contracts shall be in full force and effect and assignable to and assumable by Buyer without the consent of the other party thereto unless consent thereto shall have delivered to Buyer all of the following:been obtained.
(if) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares The UAW shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records have ratified collective bargaining agreements with Buyer relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which all Transferred Employees that are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct represented by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the ClosingUAW, in form and substance reasonably satisfactory to Buyer, to be effective on the Closing Date.
(g) At Buyer's sole cost and expense, a title insurance company acceptable to Buyer in its sole discretion shall have issued an ALTA (Form B-1992) Owner Policy of Title Insurance for the Owned Real Property and an ALTA (Form B-1992) Lessee's Policy of Title Insurance for any Leased Real Property that is leased by Sellers pursuant to a ground lease, with an endorsement providing "extended coverage" over the standard exceptions contained in such form of Policies of Title Insurance, insuring the interest to be acquired by Buyer in each such property, subject only to standard survey exceptions and Permitted Encumbrances, and in each case in an amount acceptable to Buyer in its sole discretion, but in no event in an amount greater than the fair market value of each insured property.
(h) Seller shall have delivered all documents required to be delivered by such Seller pursuant to Section 2.2.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Rouge Industries Inc), Asset Purchase Agreement (Rouge Industries Inc), Asset Purchase Agreement (Rouge Industries Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by under this Agreement are subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each of the following conditions:
6.2.1 Each representation and warranty of Seller Parent contained in this Agreement shall be true and correct on and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all resolutions of Seller authorizing (A) the sale of the following:
Assets, (iB) stock certificates representing the Purchased Shares. Each such certificate evidencing assignment of the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blankAssumed Contracts, and shall be accompanied (C) the execution and delivery of this Agreement and each of the Acquisition Agreements to which it is a party, certified by all requisite documentary or stock transfer taxes affixed thereto and canceled;the Secretary of Seller; and
(ii) all stock certificatesSeller shall have delivered to Buyer a good standing certificate, minute bookswith respect to Seller, stock books, ledgers and registers, corporate seals and other corporate records relating to from the organization, ownership and maintenance State of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap SubsidiaryNew Jersey;
(iii) original b. Seller, or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such PersonSeller's respective jurisdiction of incorporation, organization or formationPrincipals, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' ▇▇▇▇ of Sale, the Assignment and Assumption Agreement.
6.2.8 Buyer, Recap Co the Assignment and Recap Subco shall have received debt Assumption of Seller's Lease and equity proceeds the Non-Competition Agreement, each in the amounts form of the appropriate exhibit attached hereto, and on the terms Undertaking Agreement and conditions set forth in any and all other documents necessary or appropriate to complete the Commitment Letters or such other terms transactions contemplated by this Agreement;
c. Landlord and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco executed the Lease Modification and the Sellers, dated the date of the ClosingConsent, in form and substance reasonably satisfactory acceptable to Buyer., and the Lease Modification and Consent shall be valid and enforceable;
(i) (A) Each of the provisions of this Article 8 (conditions to closing) of this Agreement and (B) each of the provisions of Article 8 (conditions to closing) of each of the other Lifestyle Acquisition Agreements, shall be fully and completely satisfied, (ii) TSI's Affiliates and the other Lifestyle Sellers shall have completed the transactions contemplated by the other Lifestyle Acquisition Agreements with respect to the Lifestyle Clubs on the Closing Date, and (iii) the West ▇▇▇▇▇▇▇▇ Lease shall have been validly assigned to an affiliate of Buyer;
Appears in 3 contracts
Sources: Asset Purchase Agreement (Town Sports International Inc), Asset Purchase Agreement (Town Sports International Inc), Asset Purchase Agreement (Town Sports International Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) waiver, at or prior to the Closing Closing, of each of the following further conditions:
6.2.1 Each representation (a) The representations and warranty warranties of the Seller Parent contained made in this Agreement shall be true and correct on correct, disregarding all qualifiers and exceptions relating to materiality or Material Adverse Effect, as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date, in which case such representations and warranties shall have been true and correct, disregarding all qualifiers and exceptions relating to materiality or Material Adverse Effect, as of such earlier date) as of the Closing Date, with the same force and effect Date as though such representations and warranties had been made on and as of the Closing Date, except except, in both cases, (i) to the extent that any such representation for changes expressly contemplated or warranty is made as of a specified datepermitted by this Agreement, in which case such representation or warranty shall have been true and correct as of such date, and (ii) where any failure to the extent that any inaccuracies in such representations be true and warrantiescorrect, individually or in the aggregate, have has not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each (b) Seller shall have performed in all material respects all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement required to be performed by it under this Agreement on or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectDate.
6.2.3 (c) Buyer shall have received a certificate dated as of Seller Parent, dated the Closing Date and from Seller, executed by an authorized officer of Seller ParentSeller, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as conditions set forth in the Update, and that the Update is true and correctthis Section 10.03(a) have been satisfied.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 (d) Buyer shall have received evidence satisfactory to Buyer the following documents:
(i) the certificate of receipt formation (or equivalent organizational document) for Seller, certified by the Secretary of State of the consents applicable jurisdiction of organization;
(ii) a certificate of good standing dated within ten (10) days of the Closing by the Secretary of State of each jurisdiction in which the Seller is organized or approvals qualified to do business as to their good standing; and
(iii) a certificate of an officer of the Seller, given by each such officer on behalf of such Person and not in such officer’s individual capacity, certifying as to the consummation operating agreement of such Person and as to resolutions of the transactions contemplated by board of directors (or equivalent governing body) of such Person authorizing this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement hereby and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyerthereby.
6.2.6 On (e) The Seller shall have obtained (and in the Closing Date, case of an affirmative consent) and delivered the consents to assignment listed on Schedule 10.03(e).
(f) The Seller Parent shall have delivered to Buyer termination statements on Form UCC-3 or other appropriate releases, which when filed will release any and all of Liens on the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records Station Assets relating to the organizationIndebtedness of Seller upon such payment to the Seller’s lender.
(g) The Seller shall have made, ownership or stand ready at Closing to make, the deliveries contemplated in Section 2.08(b)(ii) and maintenance of Recap Subco Section 2.08(b)(iii) and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Ancillary Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 3 contracts
Sources: Asset Purchase Agreement (LIN Media LLC), Asset Purchase Agreement (Mercury New Holdco, Inc.), Asset Purchase Agreement (Media General Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate effect the transactions contemplated by this Agreement are Closing shall be subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each of the following conditions:
6.2.1 Each representation and warranty of Seller Parent contained in this Agreement shall be true and correct on and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing Seller shall have performed all of its obligations hereunder required to be performed by it in all material respects at or prior to the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blankClosing Date, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) the representations and warranties of Seller contained in this Agreement, any Collateral Agreement and any certificate or other writing delivered by Seller pursuant hereto, shall, except as otherwise contemplated by this Agreement, any Collateral Agreement and any certificate or other writing delivered by Seller pursuant hereto, be true and correct in all stock certificates, minute books, stock books, ledgers material respects at and registers, corporate seals and other corporate records relating as of the Closing Date as if made as of that date (except to the organizationextent expressly made as of an earlier date, ownership in which case as of the earlier date), and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;Seller shall have provided to Buyer a certificate signed by its President to the foregoing effect.
(ivb) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws Seller’s delivery of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered following items to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters at or such other terms and conditions satisfactory prior to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer:
(i) copies of any Third Party Consents;
(ii) a copy of a resolution of Seller’s Board of Directors authorizing the execution, delivery and performance of this Agreement and the Collateral Agreements, which resolutions shall be certified by the Secretary of Seller;
(iii) a copy of the consent of such number of Seller’s shareholders as is required by Colorado law and by Seller’s Articles of Incorporation, authorizing the execution, delivery and performance of this Agreement and the Collateral Agreements;
(iv) such other instruments of assignment, transfer and conveyance as Buyer shall reasonably request to transfer to and vest in Buyer all Seller’s right, title and interest in, to and under the Assets;
(v) the keys to all locks located on or in the Assets (and any and all cards, codes, devices, usernames, passwords, internet addresses, or things necessary to access any of the Assets), which shall be surrendered on request to Buyer where such Assets are located;
(vi) a ▇▇▇▇ of sale for the Assets in the form attached as Exhibit A hereto (the “▇▇▇▇ of Sale”) duly executed by Seller;
(vii) an assignment agreement in the form attached as Exhibit B hereto transferring all of Seller’s right, title and interest in and to the Assets to Buyer (the “Assignment Agreement”) duly executed by Seller;
(viii) an assignment agreement in the form attached hereto as Exhibit C hereto transferring all of Seller’s right, title and interest in and to Seller’s Intellectual Property to be transferred to Buyer pursuant to this Agreement to Buyer duly executed by Seller (the “IP Assignment”);
(ix) the Employment Agreements in the form attached as Exhibit D duly executed by ▇▇. ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, as applicable;
(x) this Agreement duly executed by Seller; and
(xi) all the Schedules set forth herein.
(c) No Material Adverse Effect shall have occurred to the Business or the Assets.
(d) No litigation, dispute or Action challenging this Agreement or the transactions contemplated herein or seeking to prohibit, alter, prevent or materially delay the Closing shall be pending or have been instituted by any Person before any court, arbitrator or Governmental Body.
(e) Buyer shall have completed to its satisfaction the legal, financial and business due diligence investigations of Seller, and such investigations shall not have revealed a material impairment of the Assets that is disclosed herein.
(f) Simultaneous with the deliveries referred to in this Section 3.2, Seller shall take or cause to be taken all such actions as may reasonably be required to put Buyer in actual possession and operating control of the Assets, including the Intellectual Property. To the extent deliveries required under Section 3.2(b) are not made, Buyer, in its sole discretion, may waive such requirement; but if such requirement is not waived, Seller shall cooperate in any reasonable arrangement proposed by Buyer designed to obtain for Buyer the material benefits and privileges of such deliveries not made.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (General Cannabis Corp)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are hereby is subject to the satisfaction (of the following conditions, any one or waiver more of which may be waived in writing by Buyer:
(a) at Seller Approvals and Buyer Approvals shall have been duly made, given or prior to obtained and shall be in full force and effect;
(i) Each of the Fundamental Representations and Warranties and the representation and warranty contained in Section 3.8(a) shall be true and correct in all respects, except for any de minimis inaccuracies, as of the date of this Agreement and as of the Closing as though made on and as of the Closing as if made at and as of that time (other than such representations and warranties that expressly address matters only as of a certain date, which need only be true as of such certain date) and (ii) each of the following conditions:
6.2.1 Each representation other representations and warranty warranties of Seller Parent contained in this Agreement shall be true and correct on in all material respects as of the date of this Agreement and as of the Closing DateClosing, with the same force as if made at and effect as though of that time (other than such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made expressly address matters only as of a specified certain date, in which case such representation or warranty shall have been need only be true and correct as of such certain date, and (ii) without giving effect to the extent that any inaccuracies in such representations and warrantieswords “material”, individually “material adverse effect” or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business “Material Adverse Effect.”;
6.2.2 Seller Parent, Recap Subco and each (c) Seller shall have performed or complied in all obligations and agreements, and complied material respects with all of the covenants and conditions, contained in agreements required by this Agreement to be performed or complied with by each it at or before the Closing;
(d) Seller shall have delivered to Buyer a certificate, dated as of them prior to or on the Closing Date except Date, certifying that the conditions specified in Sections 7.1(b) and 7.1(c) have been fulfilled;
(e) No Adverse Law or Order shall have occurred and be in effect;
(f) the waiting period applicable to the extent that consummation of the transactions contemplated hereby under any breaches applicable Antitrust Laws shall have expired or have been terminated;
(g) Seller shall have delivered to Buyer all of such obligationsthe documents, agreementscertificates and other instruments required to be delivered under, covenants and conditionsotherwise complied with the provisions of, Section 2.3(b);
(h) Since the date of this Agreement, there shall have been no occurrences that, individually or in the aggregate, have not hadhad and continue to have, and or would not reasonably be expected to have, a CRL Business Material Adverse Effect.; and
6.2.3 Buyer (i) The closing under the Merger Agreement shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to take place concurrently with the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyerhereby.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 2 contracts
Sources: Limited Liability Company Interest Purchase Agreement (Teekay LNG Partners L.P.), Limited Liability Company Interest Purchase Agreement (Teekay Corp)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are hereby shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation and warranty of Seller Parent contained in this Agreement (a) the Fundamental Representations shall be true and correct on and in all respects as of the Closing Date, with the same force and effect Date as though such representations and warranties had been made on and as of the Closing Date, Date (except (i) to the extent that any such representation or warranty is representations and warranties that are made as of a specified date, in which case such representation or warranty date shall have been be true and correct only as of such date).
(b) the representations and warranties set forth in Article III (other than the Fundamental Representations) shall be true and correct (disregarding all qualifications or limitations as to “materiality”, and (ii“in all material respects” or “Material Adverse Effect” set forth therein) to in all material respects as of the extent that any inaccuracies in Closing Date as though such representations and warranties, individually or in warranties had been made on and as of the aggregate, have not had, Closing Date (except that any such representations and would not reasonably warranties that are made as of a specified date shall be expected to have, a CRL Business Material Adverse Effecttrue and correct only as of such date).
6.2.2 Seller Parent, Recap Subco (c) the Company and each Seller the Members shall have duly performed and complied in all material respects with all agreements, covenants, obligations and agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement and the agreements contemplated hereby to be performed or complied with by each of them him, her or it prior to or on the Closing Date except Date.
(d) the Company shall have delivered (or caused to be delivered) each of the extent that any breaches of such obligations, agreements, covenants and conditions, individually or closing deliverables set forth in the aggregate, Section 2.5(b);
(e) there shall not have not had, and would not reasonably be expected to have, occurred a CRL Business Material Adverse Effect.;
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect tof) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent Company shall have delivered to Buyer all a copy of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificatesapproval(s) from the Secretary Arizona Department of State or Health Services and any other appropriate applicable Governmental Entity Entity, for the transactions contemplated hereby and the transfer of each ownership of such Person's respective jurisdiction of incorporationthe Company and in the Marijuana Permits, organization or formationwhich approval(s) shall, as determined by Buyer in its reasonable discretion, be free of any uncured regulatory violations (the case may be, dated as of a date within thirty (30) days of the Closing Date“Arizona Transaction Approval”); and
(vg) Buyer shall not have sent a true notice of termination or otherwise terminated either the 203 Arizona Purchase Agreement or the Virginia Purchase Agreement, and correct copy none of Cannabist or the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) sellers thereunder shall have executed and delivered to Buyer the Investors' Agreementbreached any provisions thereof in any material respect.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Cannabist Co Holdings Inc.), Equity Purchase Agreement (Verano Holdings Corp.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate carry out the transactions contemplated by this Agreement are subject subject, at the option of Buyer, to the satisfaction (satisfaction, or waiver in writing by Buyer) , of the following conditions at or prior to the Closing of each Closing:
(a) All representations and warranties of the following conditions:
6.2.1 Each representation Company and warranty of Seller Parent contained in this Agreement shall be true and correct on in all material respects at and as of the Closing, and the Company and Seller shall have performed and satisfied in all material respects all agreements and covenants required by this Agreement to be performed and satisfied by it at or prior to the Closing.
(b) As of the Closing Date, with no suit, action or other proceeding (excluding any such matter initiated by or on behalf of Buyer) shall be pending or threatened before any court or governmental agency seeking to restrain Buyer or prohibit the same force and effect Closing or seeking Damages against Buyer or the Company or its Properties as though such representations and warranties had been made on and as a result of the Closing Dateconsummation of this Agreement.
(c) Except for matters disclosed in Schedule 3.09(a) or 3.09(b) attached hereto, except (i) since January 11, 2000 and up to and including the extent that any such representation or warranty is made as of a specified dateClosing, in which case such representation or warranty there shall not have been true and correct as of such dateany event, and (ii) to the extent that any inaccuracies in such representations and warrantiescircumstance, change or effect that, individually or in the aggregate, had or might have not hada material adverse effect on the Company's Business, operations, prospects, Properties or financial condition.
(d) All agreements, commitments and understandings between the Company and Seller (or any Affiliate thereof) shall have been terminated in all respects on terms satisfactory to Buyer, and would not reasonably all obligations, claims or entitlements thereunder shall be expected unconditionally waived and released by the Seller and/or such Affiliates, as applicable, and written evidence thereof satisfactory in form and substance to have, a CRL Business Material Adverse EffectBuyer shall have been delivered to Buyer.
6.2.2 Seller Parent(e) All proceedings to be taken by the Company in connection with the transactions contemplated hereby and all documents incident thereto shall be satisfactory in form and substance to Buyer and its counsel, Recap Subco and each Seller Buyer and said counsel shall have performed received all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed such counterpart originals or complied with by each of them prior to certified or on the Closing Date except to the extent that any breaches other copies of such obligations, agreements, covenants and conditions, individually documents as it or in the aggregate, have not had, and would not they may reasonably be expected to have, a CRL Business Material Adverse Effectrequest.
6.2.3 (f) Buyer shall have received a certificate of Seller Parentwritten evidence, dated the Closing Date in form and executed by an officer of Seller Parentsubstance satisfactory to Buyer, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested consent to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement of all governmental, quasi-governmental and private third parties (including, without limitation, persons or other entities leasing real or personal property to the Internal Reorganization Company) where the absence of any such consent would result in a violation of law or a breach or default under any agreement to which the Company is subject.
(org) No proceeding in which the Seller or the Company shall be a debtor, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which defendant or party seeking an order for its own relief or reorganization shall have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, brought or be accompanied pending by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or against such person under any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State state bankruptcy or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parentinsolvency law.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Envision Development Corp /Fl/), Stock Purchase Agreement (E Com Ventures Inc)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are to be consummated at the Closing is subject to the satisfaction (or waiver in writing by Buyer, if permissible under law) at or prior to the Closing of each Date of the following conditions:
6.2.1 Each representation (a) PKI shall have (i) obtained (or caused to be obtained) all of the waivers, permits, consents, approvals or other authorizations and warranty effected all of Seller Parent contained the registrations, filings and notices (collectively, the “Consents”) listed on Schedule 5.1(a) attached hereto, in this Agreement form and substance reasonably satisfactory to Buyer and (ii) delivered evidence to Buyer that such Consent was obtained;
(b) the representations and warranties of PKI set forth in Article II (other than the PKI Fundamental Representations) shall be true and correct on (and the PKI Fundamental Representations shall be true and correct in all material respects) as of the Closing Date, with the same force and effect Date as though such representations and warranties had been if made on and as of the Closing Date, except (i) for changes contemplated or permitted by this Agreement or consented to the extent by Buyer, (ii) for those representations and warranties that any such representation or warranty is made address matters only as of a specified dateparticular date (which shall be true and correct or, in which the case of the PKI Fundamental Representations, true and correct in all material respects, as of such representation or warranty shall have been date), and (iii) with respect to such representations and warranties other than the PKI Fundamental Representations, for failures of such representations and warranties to be true and correct as of such dateto matters that, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not hadresulted in, and would not reasonably be expected to haveresult in, a CRL Business Material Adverse Effect.; provided, however, that for the purposes of determining the accuracy of such representations and warranties (including the PKI Fundamental Representations) all materiality qualifications limiting the scope of such representations and warranties shall be disregarded;
6.2.2 Seller Parent, Recap Subco and each Seller (c) PKI shall have performed or complied in all obligations material respects with the agreements and agreements, and complied with all covenants and conditions, contained in this Agreement required to be performed or complied with by each it under this Agreement as of them or prior to or on the Closing Date Closing, except to for Section 4.3(c) (which shall be performed and complied with in all respects as of and prior the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.Closing);
6.2.3 Buyer (d) PKI shall have received delivered to Buyer a certificate of Seller Parent, dated the Closing Date and executed by an a duly authorized officer of Seller Parent, to the effect PKI certifying that each of the representations and warranties conditions specified in clauses (a) through (c) of Seller Parent contained this Section 5.1 is satisfied;
(e) (i) no judgment, order (including a temporary restraining order), decree, stipulation or preliminary or permanent injunction (each, an “Order”) issued by any Governmental Entity shall be in this Agreement is true and correct on the Closing Date as if made on such Dateeffect, except as set forth in the Updatenor shall any statute, and that the Update is true and correct.
6.2.4 The Affiliates of Parentrule, other than the CRL Business employeesregulation or order by any Governmental Entity be promulgated or enacted, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to which prevents the consummation of the transactions contemplated by this Agreement, and (ii) no action, suit or proceeding shall be pending by or before any Governmental Entity which would reasonably be expected to result in an Order that would prevent the consummation of the transactions contemplated hereby or cause the transactions contemplated by this Agreement to be rescinded following consummation;
(f) all applicable waiting periods (and any extensions thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and the Internal Reorganization under (or, as applicable, foreign Antitrust Laws listed on Schedule 5.1(f) shall have expired or otherwise been terminated and no agreement between Buyer and any Governmental Entity in the taking United States or in the jurisdictions listed on Schedule 5.1(f) to delay the consummation of the indicated action transactions contemplated by the Agreement allowing such Governmental Entity to complete its review of the proposed transactions shall remain in connection with effect;
(g) Buyer shall have received all of the items required to be delivered to it pursuant to Section 1.3(b); and
(h) PKI shall deliver (or cause to be delivered) to Buyer extracts of the minutes of a duly held meeting of the directors (or a duly constituted committee thereof) of each of PKI and the Sellers: (A) approving the entry by PKI and the Sellers into the transactions contemplated by this Agreement and the Internal Reorganization with respect toAncillary Agreements; and (B) authorizing the contractsexecution by PKI and the Sellers of this Agreement, agreementsthe Ancillary Agreements and any other documents or agreements required to consummate the transactions contemplated by this Agreement and the Ancillary Agreements to be delivered by PKI or the Sellers at or prior to Closing and, leases, other instruments, licenses where such entry and other items which have been designated with an asterisk in Schedule 3.4 execution is approved and authorized by a committee of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all board of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, directors of PKI or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date an extract of the Closing, in form and substance reasonably satisfactory to Buyerminutes of a duly held meeting of the directors constituting such committee or the relevant extract thereof.
Appears in 2 contracts
Sources: Master Purchase and Sale Agreement (Varex Imaging Corp), Master Purchase and Sale Agreement (Perkinelmer Inc)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are is subject to the satisfaction (of the following conditions, any one or waiver more of which may be waived in writing by Buyer:
(a) at The Buyer Approvals shall have been duly made, given or prior to obtained and shall be in full force and effect, and all applicable waiting periods (and any extensions thereof) under the Closing of each ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or otherwise been terminated;
(b) All of the following conditions:
6.2.1 Each representation representations and warranty warranties of Seller Parent contained in this Agreement shall be true and correct on in all respects as of the date of this Agreement and as of the Closing DateClosing, with the same force as if made at and effect as though of that time (other than such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made expressly address matters only as of a specified certain date, in which case such representation or warranty shall have been need only be true and correct as of such date, and (ii) certain date without giving effect to the extent that any inaccuracies in such representations and warrantieswords “material”, “material adverse effect” or “Material Adverse Effect”, except where the failure to be so true would not, individually or in the aggregate, have not had, and would not reasonably be expected to have, have a CRL Business Material Adverse Effect.Effect on the Companies;
6.2.2 Seller Parent, Recap Subco and each (c) Seller shall have performed all obligations and agreements, and or complied with all of the covenants and conditions, contained in agreements required by this Agreement to be performed or complied with by each of them prior it at or before the Closing, except where the failure to perform or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and comply would not reasonably be expected to have, have a CRL Business Material Adverse Effect.Effect on the Companies;
6.2.3 Buyer (d) Seller shall have received delivered to Buyer a certificate of Seller Parent, dated the Closing Date and executed by from an officer of Seller Parentdated the Closing Date, certifying that the conditions specified in Section 8.1(b) and 8.1(c) have been fulfilled;
(e) Seller shall have delivered to Buyer a certificate from the effect that each Secretary of Seller and from the Secretary of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such DateCompanies, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective each dated as of the Closing Date., attaching and certifying the Organizational Documents and authorizing resolutions of Seller and certifying the incumbency and signatures of the persons signing this Agreement and the other agreements contemplated hereby;
6.2.5 Buyer (f) Seller shall have received evidence satisfactory delivered to Buyer a good standing certificate of receipt recent date for each of the consents Companies and Seller from their state of organization;
(g) Seller shall have delivered to Buyer (at least two Business Days before the Closing) a statement containing Seller’s good faith estimate of the Net Working Capital as of the close of business on the Closing Date; and
(h) There shall not be in force any Law, injunction, judgment, order, decree, ruling, or approvals to charge restraining or prohibiting the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (TGT Pipeline LLC), Purchase and Sale Agreement (Boardwalk Pipelines LLC)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) On or before the DSS Proxy Filing Date, Seller’s Accountants (or another independent public accounting firm registered with the PCAOB acceptable to DSS and warranty Buyer in their sole discretion) shall have delivered their audit report containing their unqualified opinion on the Annual Financial Statements and their review report on the Interim Financial Statements in accordance with PCAOB Auditing Standard.
(b) No member of the Company Group shall have any Indebtedness as of the Closing.
(c) The boards of directors of DSS and Buyer shall have received a written report from Destum Partners, Inc. (or such other independent financial advisory firm as the boards shall determine) (the “Valuation Report”) setting forth their determination of the fair market value of the Impact Shares (which determination shall be conclusive for all purposes under this Agreement and the Ancillary Documents) (the “Impact Value”), a copy of which shall be provided to Seller and SED, and such Valuation Report has not been amended or rescinded as of the Closing.
(d) Other than the representations and warranties of Seller Parent and SED contained in Section 3.01, Section 3.02, Section 3.03, Section 3.07(a) and Section 3.28, the representations and warranties of Seller and SED contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Company Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Company Material Adverse Effect) on and as of the DSS Proxy Filing Date and on and as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Seller and SED contained in Section 3.01, Section 3.02, Section 3.03, Section 3.07(a) and Section 3.28 shall be true and correct in all respects on and as of the DSS Proxy Filing Date and on and as of the Closing Date, Date with the same effect as though made at and as of such date (except (i) to the extent those representations and warranties that any such representation or warranty is made address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in which case all respects).
(e) Each of Seller and SED shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such representation or warranty agreements, covenants and conditions, as so qualified, in all respects.
(f) No Action shall have been true and correct as commenced against Buyer, DSS, Seller, SED or any member of such datethe Company Group, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(iig) All approvals, consents and waivers that are listed on Section 3.05 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the extent that Closing.
(h) From the date of this Agreement, there shall not have occurred any inaccuracies in such representations and warrantiesCompany Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, have not hadwith or without the lapse of time, and would not could reasonably be expected to have, result in a CRL Business Company Material Adverse Effect.
6.2.2 (i) The Ancillary Documents shall have been executed and delivered by the Parties thereto and true and complete copies thereof shall have been delivered to Buyer.
(j) Each of Seller Parent, Recap Subco and SED shall have delivered to Buyer a good standing certificate (or its equivalent) for each member of the Company Group from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which such entity is organized.
(k) Seller shall have performed all obligations delivered, or caused to be delivered, to Buyer stock certificates evidencing the Impact Shares, free and agreementsclear of Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank and complied with all covenants and conditionsrequired stock transfer tax stamps affixed.
(l) Buyer shall have received a certificate, contained in this Agreement to be performed or complied with by each of them prior to or on dated the Closing Date except to and signed by a duly authorized officer of each of Seller and SED, that each of the extent that any breaches of such obligations, agreements, covenants conditions set forth in Section 7.02(a) and conditions, individually or in the aggregate, Section 7.02(e) have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effectbeen satisfied.
6.2.3 (m) Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by Secretary or an officer Assistant Secretary (or equivalent officer) of each of Seller Parent, to and SED certifying that attached thereto are true and complete copies of all resolutions adopted by the effect that each board of the representations directors and warranties stockholders of Seller Parent contained in and SED authorizing the execution, delivery and performance of this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries Ancillary Documents and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement hereby and thereby, and that all such resolutions are in full force and effect and are all the Internal Reorganization under (or, as applicable, the taking of the indicated action resolutions adopted in connection with the transactions contemplated by hereby and thereby.
(n) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each of Seller and SED certifying the names and signatures of the officers of Seller authorized to sign this Agreement Agreement, the Ancillary Documents and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses documents to be delivered hereunder and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyerthereunder.
6.2.6 On the Closing Date, (o) Each of Seller Parent and SED shall have delivered to Buyer all of such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied transactions contemplated by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' this Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 2 contracts
Sources: Share Exchange Agreement (Document Security Systems Inc), Share Exchange Agreement (HF Enterprises Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent contained in this Agreement ARTICLE III shall be true and correct on and in all respects as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all respects as of such that specified date), and (ii) to except where the extent that any inaccuracies in failure of such representations and warranties, individually or in the aggregate, have not had, warranties to be true and correct would not reasonably be expected to have, have a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each (b) Seller shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them it prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectDate.
6.2.3 (c) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 6.02(a) and Section 6.02(b) have been satisfied.
(d) Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer Secretary (or equivalent officer) of Seller Parent, to certifying that attached thereto are true and complete copies of all resolutions adopted by the effect that each board of the representations and warranties directors of Seller Parent contained in authorizing the execution, delivery and performance of this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement hereby, and that all such resolutions are in full force and effect and are all the Internal Reorganization under (or, as applicable, the taking of the indicated action resolutions adopted in connection with the transactions contemplated by this Agreement and hereby.
(e) The Seller Parties shall have delivered, or caused to be delivered, to Buyer stock certificates or a stock ledger in book entry form evidencing that the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which Shares have been designated with an asterisk in Schedule 3.4 of transferred to Buyer effective upon the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to BuyerClosing.
6.2.6 On the Closing Date, (f) Seller Parent shall have delivered to Buyer all exchanged the Company Note for Series C preferred stock of Buyer, based on the following:purchase price allocation in Section 2.02, effective upon the Closing.
(ig) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) The Company shall have executed and delivered to Buyer the Investors' Agreementan aggregate balance of at least $1,000,000 in its bank accounts at Closing.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 2 contracts
Sources: Securities Exchange Agreement (Ecoark Holdings, Inc.), Securities Exchange Agreement (Humbl, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement hereby are further subject to the satisfaction (or waiver in writing by Buyerwaiver) at or prior to the Closing of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent Group contained in this Agreement herein that are qualified as to materiality shall be true and correct in all respects on and as of the Closing Date, Date (except for the representations and warranties made as of a specific date which shall be true in all material respects as of such date) with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained that are not so qualified shall be true in all material respects;
(b) Seller Group shall have performed and complied with in all material respects its agreements, obligations and covenants under this Agreement is true and correct on required to be performed or complied with by it at or prior to the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals pursuant to the consummation of the transactions contemplated by this Agreement terms hereof;
(c) The requisite consents and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect toapprovals listed on Schedule 6.3(c) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure ScheduleSchedules shall have been obtained, which consents, approvals and actions a copy of each such consent or approval shall be in form and substance reasonably satisfactory have been provided to Buyer., at or prior to Closing;
6.2.6 On the Closing Date, (d) Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such a certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws satisfaction of the United States conditions contained in Sections 6.3(a) and 6.3(b), dated as of America (the Closing and executed by an officer of Seller or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formationSelling Subsidiary, as the case may be, dated as of a date within thirty ;
(30e) days Each of the documents referred to in Section 1.4 shall have been executed by the appropriate member(s) of the Seller Group and delivered to Buyer;
(f) Provision satisfactory to Buyer shall have been made for the release of any security interests which encumber any of the Assets other than Permitted Encumbrances;
(g) There shall not be any suit, action, or other proceeding pending or overtly threatened by any governmental authority or administrative agency or commission that seeks to enjoin or otherwise prevent consummation of the transactions contemplated hereby or that would have a Material Adverse Effect, other than suits, actions or proceedings that, in the reasonable opinion of Buyer’s counsel, are unlikely to prevail;
(h) Seller Group shall have provided to Buyer all Audited and Other Required Financial Information of the Business required by the SEC to be filed by Buyer following the Closing Dateas part of the Form 8-K with respect to the transactions contemplated by this Agreement; and
(vi) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) No event shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated occurred since the date of the Closing, in form this Agreement and substance no condition or circumstance shall exist that would reasonably satisfactory be expected to Buyergive rise to any Material Adverse Effect.
Appears in 2 contracts
Sources: Asset Purchase Agreement (3com Corp), Asset Purchase Agreement (Utstarcom Inc)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate effect the transactions contemplated by this Agreement are hereby shall be subject to the satisfaction (or waiver in writing by Buyer) fulfillment at or prior to the Closing of each of the following additional conditions:
6.2.1 Each representation (a) Since the date of this Agreement, no Material Adverse Effect shall have occurred and warranty of be continuing or reasonably be expected to occur;
(b) Seller Parent shall have performed and complied with in all material respects the covenants and agreements contained in this Agreement that are required to be performed and complied with by Seller on or prior to the Closing Date;
(c) All representations and warranties of Seller set forth in this Agreement that are not qualified by materiality (or similar words) shall be true and correct on in all material respects as of the date of this Agreement and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is representations and warranties made as of of, or in respect of, only a specified date, in which case such representation date or warranty shall have been period are true and correct as of such dateof, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregaterespect of, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.such date or period;
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each (d) Each of the representations and warranties of Seller Parent contained in this Agreement is that are qualified by materiality or Material Adverse Effect (or similar words) shall be true and correct on as of the Closing Date as if made on such Date, except as set forth in the Update, date of this Agreement and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date., with the same effect as though such representations and warranties had been made on and as of the Closing Date, except that representations and warranties made as of, or in respect of, only a specified date or period shall be are true and correct as of, or in respect of, such date or period;
6.2.5 (e) Buyer shall have received evidence satisfactory to Buyer a certificate from an authorized officer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (orSeller, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On dated the Closing Date, to the effect that the conditions set forth in Sections 8.2(a), 8.2(b), 8.2(c) and 8.2(d) have been satisfied by the Seller;
(f) The Seller Parent Required Regulatory Approvals in Schedule 5.3(b) and the Buyer Required Regulatory Approvals in Schedule 6.3(b) shall have delivered been made or obtained and shall have become Final Orders, and such Final Orders shall not impose terms and conditions that would reasonably be expected to have a Material Adverse Effect or Buyer all of the following:Material Adverse Effect;
(ig) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares Seller shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blankhave executed, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating prepared to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or deliver at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consentsClosing, filings, authorizations, approvals the Related Agreements and all other actions documents and items required to be delivered by Seller pursuant to Section 4.3 and Buyer shall have obtained the approval described in Sections 5.5.5Schedule 6.2, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Dateif any; and
(vh) a true Seller shall have discharged and correct copy obtained full release of all liens on the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized Acquired Assets arising under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parentmortgage bonds identified in Schedule 2.4(f).
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Allegheny Energy, Inc), Asset Purchase Agreement (Allegheny Energy, Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) waiver, at or prior to the Closing Closing, of each of the following further conditions:
6.2.1 Each representation (a) The representations and warranty warranties of the Seller Parent contained made in this Agreement shall be true and correct on correct, disregarding all qualifiers and exceptions relating to materiality or Material Adverse Effect, as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date, in which case such representations and warranties shall have been true and correct, disregarding all qualifiers and exceptions relating to materiality or Material Adverse Effect, as of such earlier date) as of the Closing Date, with the same force and effect Date as though such representations and warranties had been made on and as of the Closing Date, except except, in both cases, (i) to the extent that any such representation for changes expressly contemplated or warranty is made as of a specified datepermitted by this Agreement, in which case such representation or warranty shall have been true and correct as of such date, and (ii) where any failure to the extent that any inaccuracies in such representations be true and warrantiescorrect, individually or in the aggregate, have has not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each (b) Seller shall have performed in all material respects all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement required to be performed by it under this Agreement on or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectDate.
6.2.3 (c) Buyer shall have received a certificate dated as of Seller Parent, dated the Closing Date and from Seller, executed by an authorized officer of Seller ParentSeller, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as conditions set forth in the Update, and that the Update is true and correctthis Section 10.03(a) have been satisfied.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 (d) Buyer shall have received evidence satisfactory to Buyer the following documents:
(i) the certificate of receipt formation (or equivalent organizational document) for Seller, certified by the Secretary of State of the consents applicable jurisdiction of organization;
(ii) a certificate of good standing dated within ten (10) days of the Closing by the Secretary of State of each jurisdiction in which the Seller is organized or approvals qualified to do business as to their good standing; and
(iii) a certificate of an officer of the Seller, given by each such officer on behalf of such Person and not in such officer’s individual capacity, certifying as to the consummation operating agreement of such Person and as to resolutions of the transactions contemplated by board of directors (or equivalent governing body) of such Person authorizing this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement hereby and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyerthereby.
6.2.6 On (e) The Seller shall have obtained (and in the Closing Date, case of an affirmative consent) and delivered the consents to assignment listed on Schedule 10.03(e).
(f) The Seller Parent shall have delivered to Buyer termination statements on Form UCC-3 or other appropriate releases, which when filed will release any and all of Liens on the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records Station Assets relating to the organizationIndebtedness of the Seller or ▇▇▇▇▇▇▇ upon such payment to the applicable lender.
(g) The Seller shall have made, ownership or stand ready at Closing to make, the deliveries contemplated in Section 2.08(b)(ii) and maintenance of Recap Subco Section 2.08(b)(iii) and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Ancillary Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 2 contracts
Sources: Asset Purchase Agreement (LIN Media LLC), Asset Purchase Agreement (Media General Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing fulfillment of each all of the following conditionsconditions unless waived by ▇▇▇▇▇ in writing:
6.2.1 (a) Each representation and warranty of Seller Parent contained Sellers set forth in Article III of this Agreement shall be true and correct on and in all material respects as of the Closing Date, with the same force and effect as though such representations and warranties had been made on Signing Date and as of the Closing Date, except that (i) to the extent that any such representation or warranty is representations and warranties made as of a specified date, in which case such representation or warranty shall have been date need be true and correct only as of such the specified date, and (ii) representations and warranties qualified by concepts of materiality shall be true and correct in all respects.
(b) Each Seller shall have performed and observed in all material respects all obligations and conditions to be performed or observed by them under this Agreement at or prior to the extent that Closing, including, without limitation, the delivery of the items set forth in Section 2.5 hereof.
(c) Since the Signing Date, there shall not have been any inaccuracies in such representations and warranties, individually or change in the aggregateassets, have not hadliabilities, and would not business, prospects, results of operations or financial condition of the Company or any Seller that has or could be reasonably be expected to have, have a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller (d) The Sellers shall have performed all obligations and agreements, and complied furnished Buyer with all covenants and conditions, contained in this Agreement to be performed or complied with by each a certificate dated as of them prior to or on the Closing Date except to the extent that any breaches of such obligationsDate, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parentthe Sellers, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as conditions set forth in the UpdateSections 7.3(a), (b) and that the Update is true and correct(c) have been satisfied.
6.2.4 (e) The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer Sellers shall have tendered their resignations taken the actions required to be taken by the Sellers pursuant to Section 2.5.
(f) Seller shall have obtained and delivered to Buyer all consents, approvals or waivers Buyer deems necessary or desirable in order to consummate the transactions contemplated by this Agreement, including, without limitation, consents under all Contracts set forth on Schedule 7.3(f).
(g) The Company shall have: (i) effective as of immediately before the Closing Date.
6.2.5 Closing, (i) terminated all employment contracts between the Company and each of its employees, with such employees continuing in the employ of the Company on an at-will basis, and (ii) delivered to Buyer shall have received evidence reasonably satisfactory to Buyer of receipt such terminations.
(h) Prior to the Closing, Buyer shall have obtained on terms and conditions acceptable to Buyer, in its sole and absolute discretion, all of the consents or approvals financing (equity and/or debt) it needs in order to purchase the consummation of Acquired Interests and to otherwise consummate the transactions contemplated by this Agreement and (the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer“Financing”).
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Lightpath Technologies Inc), Membership Interest Purchase Agreement (Lightpath Technologies Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are at the Closing shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Date, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent the Company contained in this Agreement Article III shall be true and correct on and in all material respects as of the Closing Date, with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all material respects as of such that specified date), and (ii) to except where the extent that any inaccuracies in failure of such representations and warrantieswarranties to be true and correct would not, individually or in the aggregate, have not had, and would not or reasonably be expected to have, have a CRL Business Material Adverse Effect; provided, that the representations and warranties of the Company contained in Section 3.02 shall be true and correct in all respects as of the Closing Date, with the same effect as though made at and as of such date, without exception for immaterial errors or otherwise.
6.2.2 Seller Parent(b) On or prior to Closing, Recap Subco and each Seller Buyer shall have satisfactorily completed its due diligence review of the Company and its business.
(c) On or prior to Closing, the Company shall have filed the Certificate of Designation for the Shares with the Illinois Secretary of State and delivered to Buyer evidence of the Illinois Secretary of State’s acceptance thereto.
(d) The Company shall have duly performed all obligations and agreements, and complied with all agreements, covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them it prior to or on the Closing Date except to the extent that any breaches Date.
(e) Buyer shall have received a certificate, dated as of such obligationsClosing Date and signed by a duly authorized officer of the Company, agreements, covenants and conditions, individually or that each of the applicable conditions set forth in the aggregate, this Section 6.02 have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effectbeen satisfied.
6.2.3 (f) Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by Secretary or an officer of Seller Parent, to the effect that each Assistant Secretary (or equivalent officer) of the representations Company certifying (i) that attached thereto are true and warranties complete copies of Seller Parent contained in all resolutions adopted by the Company Board authorizing the execution, delivery and performance of this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement Transaction, and that all such resolutions are in full force and effect and are all the Internal Reorganization under (or, as applicable, the taking of the indicated action resolutions adopted in connection with the transactions contemplated by this Agreement and hereby,
(g) The Company shall have delivered, or caused to be delivered, to Buyer confirmation from the Internal Reorganization with respect to) Company that the contracts, agreements, leases, other instruments, licenses and other items which Shares being purchased at the Closing have been designated with an asterisk registered in Schedule 3.4 the Company’s books and records as outstanding in the name of the Buyer and free and clear of Encumbrances.
(h) At the Closing, Buyer shall have received from the Company the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On within three business days from the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating from counsel to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates Company a legal opinion dated effective as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory acceptable to Buyer.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Yunhong CTI Ltd.), Stock Purchase Agreement (Yunhong CTI Ltd.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are hereby shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation and warranty of Seller Parent contained in this Agreement (a) the Fundamental Representations shall be true and correct on and in all respects as of the Closing Date, with the same force and effect Date as though such representations and warranties had been made on and as of the Closing Date, Date (except (i) to the extent that any such representation or warranty is representations and warranties that are made as of a specified date, in which case such representation or warranty date shall have been be true and correct only as of such date).
(b) the representations and warranties set forth in Article III (other than the Fundamental Representations) shall be true and correct (disregarding all qualifications or limitations as to “materiality”, and (ii“in all material respects” or “Material Adverse Effect” set forth therein) to in all material respects as of the extent that any inaccuracies in Closing Date as though such representations and warranties, individually or in warranties had been made on and as of the aggregate, have not had, Closing Date (except that any such representations and would not reasonably warranties that are made as of a specified date shall be expected to have, a CRL Business Material Adverse Effecttrue and correct only as of such date).
6.2.2 Seller Parent, Recap Subco (c) the Company and each Seller the Member shall have duly performed and complied in all material respects with all agreements, covenants, obligations and agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement and the agreements contemplated hereby to be performed or complied with by each of them him, her or it prior to or on the Closing Date except Date.
(d) the Company shall have delivered (or caused to be delivered) each of the extent that any breaches of such obligations, agreements, covenants and conditions, individually or closing deliverables set forth in the aggregate, Section 2.5(b);
(e) there shall not have not had, and would not reasonably be expected to have, occurred a CRL Business Material Adverse Effect.;
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect tof) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent Company shall have delivered to Buyer all a copy of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificatesapproval(s) from the Secretary Arizona Department of State or Health Services and any other appropriate applicable Governmental Entity Entity, for the transactions contemplated hereby and the transfer of each ownership of such Person's respective jurisdiction of incorporationthe Company and in the Marijuana Permits, organization or formationwhich approval(s) shall, as determined by Buyer in its reasonable discretion, be free of any uncured regulatory violations (the case may be, dated as of a date within thirty (30) days of the Closing Date“Arizona Transaction Approval”); and
(vg) Buyer shall not have sent a true notice of termination or otherwise terminated either the Virginia Purchase Agreement or the SWC Arizona Purchase Agreement, and correct copy none of Cannabist or the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) sellers thereunder shall have executed and delivered to Buyer the Investors' Agreementbreached any provisions thereof in any material respect.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Verano Holdings Corp.), Equity Purchase Agreement (Cannabist Co Holdings Inc.)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate effect the transactions contemplated by this Agreement are hereby is also subject to the satisfaction (or waiver in writing by Buyer) , at or prior to the Closing of each Date of the following conditions:
6.2.1 Each representation (a) Since the date of this Agreement, no Material Adverse Effect shall have occurred and warranty of Seller be continuing;
(b) Seller, Parent and Merger Sub shall have performed and complied in all material respects with the covenants and agreements contained in this Agreement which are required to be performed and complied with by such Person on or prior to the Closing Date (other than Section 4.3, which is subject to Section 9.2(f));
(c) The representations and warranties of Seller set forth in ARTICLE V of this Agreement, and the representations and warranties of Parent and Merger Sub set forth in ARTICLE VII of this Agreement, shall be true and correct on and as of the Closing Date, with the same force and effect as though such representations and warranties had been if made on at and as of the Closing Date, Date (except (i) to the extent that any such representation or warranty is expressly made as of a specified an earlier date, in which case such representation or and warranty shall have been will be true and correct only as of such date), and (ii) to except where the extent that any inaccuracies in failure or failures of such representations and warrantieswarranties to be so true and correct (without giving effect to any limitations or exceptions as to materiality or Material Adverse Effect set forth therein) would not, individually or in the aggregate, have not had, and would not reasonably be expected to have, result in a CRL Business Material Adverse Effect.;
6.2.2 Seller Parent, Recap Subco and each Seller (d) Buyer shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by received a certificate from the Chief Executive Officer of each of them prior to or on Parent and Seller, dated the Closing Date except stating that, to the extent that any breaches best of such obligationsofficer’s knowledge, agreementsthe conditions set forth in Sections 9.2(b) and 9.2(c) regarding Parent and Seller, covenants respectively, have been satisfied;
(e) The Required Regulatory Approvals shall have been obtained and conditionsbecome Final Regulatory Orders, and no terms (excluding those proposed in the applications for the Required Regulatory Approvals) shall have been imposed in connection with such Final Regulatory Orders by any Governmental Entity which terms, individually or in the aggregate, have not had, and would not reasonably be expected to have, result in a CRL Business Regulatory Material Adverse Effect.;
6.2.3 (f) Buyer shall have received the items to be delivered pursuant to Section 4.3; provided that the failure to deliver the items required to be delivered pursuant to Sections 4.3(e)-(i) shall not be construed as a failure to satisfy the requirements of this Section 9.2(f) to the extent any deed, assignment, instrument of conveyance or certificate of Seller Parenttitle, dated termination or release (i) otherwise required pursuant to Sections 4.3(e)-(h) relates to parcels of immaterial Real Property, immaterial Easements, or immaterial titled or other Purchased Assets, each of which is subject to transfer subsequent to the Closing Date pursuant to Section 8.17; or (ii) otherwise required pursuant to Section 4.3(i) relates to terminations or releases of Non-Permitted Encumbrances on the Purchased Assets requiring the payment of immaterial amounts of cash, or the delivery of instruments, certificates or other documents or items required to remove Non-Permitted Encumbrances on assets that are immaterial to the Business, the Purchased Assets, the Colorado Business and executed by an officer of Seller Parentthe Colorado Assets, taken as a whole, and are subject, in each case, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on release subsequent to the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.pursuant to Section 8.17; and
6.2.4 1- LA/903877.26
(g) The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this the Partnership Interests Purchase Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection shall have occurred or shall occur concurrently with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to BuyerClosing.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Aquila Inc), Asset Purchase Agreement (Black Hills Corp /Sd/)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are hereby is subject to the satisfaction (of the following conditions, any one or waiver more of which may be waived in writing by Buyer:
(a) at Buyer Approvals shall have been duly made, given or prior to the Closing of each obtained and shall be in full force and effect;
(b) Each of the following conditions:
6.2.1 Each representation representations and warranty warranties of Seller Parent Sellers contained in this Agreement (other than those contained in Section 3.2 and Section 3.6, which shall be true and correct on in all respects) shall be true in all material respects as of the date of this Agreement and as of the Closing DateClosing, with the same force as if made at and effect as though of that time (other than such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made expressly address matters only as of a specified certain date, in which case such representation or warranty shall have been need only be true and correct as of such certain date, and (ii) without giving effect to the extent that any inaccuracies in such representations and warrantieswords “material”, individually “material adverse effect” or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business “Material Adverse Effect.”;
6.2.2 Seller Parent, Recap Subco and each Seller (c) Sellers shall have performed or complied in all obligations and agreements, and complied material respects with all of the covenants and conditions, contained in agreements required by this Agreement to be performed or complied with by each it at or before the Closing;
(d) Sellers shall have delivered to Buyer a certificate, dated as of them prior to or on the Closing Date except Date, certifying that the conditions specified in Sections 8.1(b) and 8.1(c) have been fulfilled;
(e) No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction, judgment or other order shall have been enacted, entered, promulgated, enforced or issued by any Governmental Authority, or other legal restraint or prohibition preventing the consummation of the transactions contemplated hereby shall be in effect, and no investigation, action or proceeding before a Governmental Authority shall have been instituted or threatened challenging or seeking to restrain or prohibit the transactions contemplated hereby or to recover damages in connection therewith;
(f) Sellers and Buyer shall have entered into an amendment to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or Omnibus Agreement in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.form of Exhibit A;
6.2.3 (g) Buyer shall have received a certificate true and complete copy, certified by the secretary of Seller ParentTarga GP Inc. and Targa LP Inc., dated of resolutions duly and validly adopted by the Closing Date board of directors of Targa GP Inc. and executed by an officer of Seller ParentTarga LP Inc., to the effect that each evidencing their authorization of the representations execution and warranties delivery of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as consummation of transactions contemplated hereby;
(h) the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals waiting period applicable to the consummation of the transactions contemplated by this Agreement and hereby under the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which HSR Act shall have expired or have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.terminated;
6.2.6 On the Closing Date, Seller Parent (i) Sellers shall have delivered to Buyer all of the following:
(i) stock documents, certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall and other instruments required to be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blankdelivered under, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceledotherwise complied with the provisions of, Section 2.3(b);
(iij) all stock certificatesBuyer shall have obtained such third party financing as may be required for Buyer to consummate the transactions contemplated by this Agreement, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to which shall have been approved by the organization, ownership and maintenance board of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at directors of the principal place of business of Recap Subco or any Recap SubsidiaryGeneral Partner;
(iiik) original or copies Affiliates of consents, filings, authorizations, approvals Sellers and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as the Companies shall have entered into NGL sale/purchase agreements pursuant to which such Affiliates of Sellers have agreed to sell and the valid existence Companies have agreed to purchase NGLs generated by and/or owned by such Affiliates of Sellers on terms reasonably acceptable to Buyer and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing DateSellers; and
(vl) Buyer shall not have provided notice to Sellers that Buyer is contemplating a true material acquisition transaction or business combination and correct copy the Board of Directors of Targa Resources GP LLC, the general partner of Buyer, has determined that, in light of such pending material transaction, Buyer cannot proceed with consummation of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parenttransactions contemplated hereby.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Targa Resources Partners LP), Purchase and Sale Agreement (Targa Resources, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate effect the transactions contemplated by this Agreement are Closing shall be subject to the satisfaction following:
(or waiver a) (i) Sellers shall have performed all of their obligations hereunder required to be performed by them in writing by Buyer) all material respects at or prior to the Closing of each of the following conditions:
6.2.1 Each representation and warranty of Seller Parent contained in this Agreement shall be true and correct on and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent Sellers contained in this Agreement, any Transaction Agreement is and any certificate or other writing delivered by Sellers pursuant hereto, shall, except as otherwise contemplated by this Agreement, any other Transaction Agreement and any certificate or other writing delivered by Sellers pursuant hereto, be true and correct on in all material respects at and as of the Closing Date as if made on such Dateas of that date (except to the extent expressly made as of an earlier date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective which case as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blankearlier date), and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;Sellers shall have provided to Buyer a certificate signed by each Seller’s President to the foregoing effect.
(ivb) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws Sellers’ delivery of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered following items to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters at or such other terms and conditions satisfactory prior to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer:
(i) copies of the Third Party Consents;
(ii) a copy of a resolution of each Seller’s Board of Directors or Managers, as applicable, authorizing the execution, delivery and performance of this Agreement and the other Transaction Agreements, which resolutions shall be certified by the Secretary of each such Seller;
(iii) a copy of the consent of the Parent as is required by Texas Law, as the sole equity holder of CCI, authorizing the execution, delivery and performance of this Agreement and the Transaction Agreements;
(iv) a copy of the consent of the majority interest of the members of CRA, authorizing the execution, delivery and performance of this Agreement and the Transaction Agreements;
(v) such other instruments of assignment, transfer and conveyance as Buyer shall reasonably request to transfer to and vest in Buyer all Sellers’ right, title and interest in, to and under the Acquired Assets;
(vi) the keys to all locks located on or in the Acquired Assets (and any and all cards, codes, devices, usernames, passwords, internet addresses, or things necessary to access any of the Acquired Assets), which shall be surrendered on request to Buyer where such Acquired Assets are located;
(vii) a ▇▇▇▇ of sale for the Acquired Assets in the form attached as Exhibit A hereto (the “▇▇▇▇ of Sale”) duly executed by Sellers;
(viii) an assignment agreement in the form attached as Exhibit B hereto transferring all of Sellers’ right, title and interest in and to the Acquired Assets to Buyer (the “Assignment Agreement”) duly executed by Sellers;
(ix) an assignment agreement in the form attached hereto as Exhibit C hereto transferring all of Sellers’ right, title and interest in and to Sellers’ Intellectual Property to be transferred to Buyer pursuant to this Agreement to Buyer duly executed by Sellers (the “IP Assignment”);
(x) the Amended and Restated Loan and Security Agreement in the form attached as Exhibit D (the “Amended Loan Agreement”), duly executed by the holders of Notes;
(xi) copies of documents, computer files, and computer printouts requested by Buyer related to the Sold Merchants (Sellers may delete or redact from such reports all information not related to the Sold Merchants. Sellers shall deliver to Buyer originals of all information and documents in whatever form that relate to the Sold Merchants and the Acquired Assets, and shall not retain copies of any such documents without the express written consent of Buyer);
(xii) a copy of the audited financial statements of CCI for its most recent fiscal year end;
(xiii) this Agreement duly executed by Sellers; and
(xiv) all the Schedules set forth herein.
(c) No Material Adverse Effect shall have occurred to the Business or the Acquired Assets.
(d) No litigation, dispute or Action challenging this Agreement or the transactions contemplated herein or seeking to prohibit, alter, prevent or materially delay the Closing shall be pending or have been instituted by any Person before any court, arbitrator or Governmental Body.
(e) Buyer shall have completed to its satisfaction the legal, financial and business due diligence investigations of Sellers, and such investigations shall not have revealed a material impairment of the Acquired Assets that is disclosed herein.
(f) Simultaneous with the deliveries referred to in this Section 3.2, Sellers shall take or cause to be taken all such actions as may reasonably be required to put Buyer in actual possession and operating control of the Acquired Assets, including the Intellectual Property. To the extent deliveries required under this Section 3.2 are not made, Buyer, in its sole discretion, may waive such requirement; but if such requirement is not waived, Sellers shall cooperate in any reasonable arrangement proposed by Buyer designed to obtain for Buyer the material benefits and privileges of such deliveries not made.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Excel Corp), Asset Purchase Agreement (Calpian, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated provided for by this Agreement are subject subject, at the discretion of Buyer, to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty of Seller Parent warranties contained in Article II and Article III of this Agreement that are qualified by “materiality,” “Material Adverse Effect” or a similar qualifier shall be true and correct on in all respects, and each of such representations and warranties that is not so qualified shall be true and correct in all material respects, in each case, as of the date hereof and as of the Closing Date, with the same force and effect Date as though such representations and warranties had been if originally made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is those representations and warranties that are made as of a specified date, in which case such representation or warranty specific date shall have been true and correct be determined as of such date, and Buyer shall have received a certificate to such effect signed by the Seller and the Company.
(iib) All of the agreements and covenants that Seller and the Company are required to perform or comply with pursuant to this Agreement at or prior to the extent that Closing Date shall have been performed or complied with in all material respects, and Buyer shall have received a certificate to such effect signed by the Seller and the Company.
(c) Since the date of this Agreement, there shall not have occurred a Material Adverse Effect, or any inaccuracies in such representations and warrantiesevents, changes, developments or effects which, individually or in the aggregate, have not had, and would not could reasonably be expected to have, have a CRL Business Material Adverse Effect, and Buyer shall have received a certificate to such effect signed by the Seller and the Company.
6.2.2 (d) Each of the Consents specified in Sections 2.3 of the Seller ParentDisclosure Schedule and 3.4 of the Company Disclosure Schedule, Recap Subco and on Schedules 4.3 and 5.3 or otherwise necessary to permit the transactions contemplated by this Agreement shall have been obtained and shall be in full force and effect.
(e) As of the Closing, each Post-Closing Employment Agreement delivered by the Designated Employees on the date hereof shall be in full force and effect and each Seller Designated Employee shall have performed all obligations and agreementsor complied with each obligation, agreement, and complied with all covenants and conditions, contained in this Agreement covenant to be performed or complied with by each of them such Designated Employee thereunder on or prior to or on the Closing Date except Date.
(f) The Escrow Fund (as such term is defined in the 2010 Escrow Agreement) shall have been distributed to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectShareholders as contemplated by Section 6.6.
6.2.3 Buyer (g) The 2010 Escrow Agreement shall have received a certificate of Seller Parent, dated the Closing Date been terminated.
(h) Resignations and releases executed by an officer of Seller Parent, to the effect that each such of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Datemanagers, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco the Company and the Recap its Subsidiaries and who have been requested to resign as are designated by Buyer shall have tendered their resignations effective been delivered to Buyer in the form reasonably satisfactory to Buyer.
(i) The Company shall have obtained and delivered to Buyer a written consent with respect to each of the Leases pursuant to which consent of the landlord or other party is required, and a waiver of landlord liens, collateral assignment of lease or leasehold mortgage from the landlord or other party whose consent thereto is required under each such Lease (the “Lease Consents”), in form and substance satisfactory to Buyer.
(j) No action, suit or proceeding shall have been instituted by any Person which seeks to prohibit, restrict or delay consummation of the transactions contemplated herein or any of the conditions material to consummation of the transactions contemplated herein.
(k) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PLLC, counsel to the Seller and the Company, shall have delivered to Buyer a legal opinion in the form attached hereto as Exhibit A.
(l) The Company shall have delivered to Buyer copies of waivers executed by the Designated Shareholders with respect to the earn-out under the SPA, as contemplated by Section 6.6.
(m) The Company and each Subsidiary shall have delivered to Buyer a certificate of the Company’s or such Subsidiary’s Secretary, dated as of the Closing Date, in form and substance reasonably satisfactory to Buyer, certifying as to and attaching (if applicable): (i) its complete and accurate copies of the Organizational Documents, (ii) the incumbency of the officers executing this Agreement and (iii) complete and accurate copies of resolutions of the Board of Directors and the sole stockholder authorizing and approving the execution, delivery and performance of this Agreement and the transactions contemplated hereby, and the acts of the officers of the Company in carrying out the terms and provisions hereof and thereof.
6.2.5 Buyer (n) The Company and each Subsidiary shall have received evidence satisfactory delivered to Buyer a certificate of receipt legal existence and corporate good standing from the Secretary of State of its jurisdiction of incorporation and any jurisdiction where it is qualified to do business, which certificates shall be dated no more than three (3) Business Days prior to the Closing Date.
(o) The Seller shall have delivered to Buyer a duly executed and acknowledged certificate, in form and substance acceptable to Buyer and in compliance with the Code and Treasury Regulations, certifying such facts as to establish that the sale of the consents Shares are exempt from withholding under Section 1445 of the Code.
(p) The Seller and each Affiliate of the Company shall have executed and delivered to Buyer a general release in favor of Buyer and its Affiliates in the form attached hereto as Exhibit B, which shall include, among other things, a release of any claims the Seller or approvals its Affiliates may have against the Company under the SPA (each, a “General Release”).
(q) The signatories to the consummation bank accounts of the Company shall have been changed to Buyer’s satisfaction.
(r) The Seller and the Company shall have delivered to Buyer written consents to the transactions contemplated by this Agreement and from the Internal Reorganization under (or, as applicable, Seller’s creditors listed on Schedule 7.2(r) in the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On (s) The Seller and the Closing Date, Seller Parent Company shall have delivered to Buyer all the Escrow Agreement duly executed by the Seller, the Company and the Escrow Agent.
(t) All Liens on any of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws assets of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) Company shall have executed been fully released and delivered discharged pursuant to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, documents in form and substance reasonably satisfactory to Buyer, and the Seller or the Company shall have made all necessary filings and taken all other action necessary to effect such releases and discharges including, without limitation, filing all necessary UCC termination statements in all applicable jurisdictions.
(u) Buyer shall have received from the Seller audited consolidated financial statements (“Audited Financial Statements”) of the Company and its Subsidiaries for all years required to be included in a Form 8-K to be filed by HSCC as a result of consummation of this Agreement, with such Audited Financial Statements to be prepared in accordance with GAAP, consistently applied throughout the periods, and with the report of the Company’s auditor and consent in connection therewith to be unqualified.
(v) Any intercompany indebtedness, including any payments due by the Company to the Seller for services rendered by the Seller or its Affiliates prior to the Closing Date, shall be paid in full or otherwise discharged prior to the Closing.
(w) The Seller and Default Servicing, LLC, a Delaware limited liability company and a wholly-owned subsidiary of the Seller (“Default”) shall have entered into, and consummated the transactions contemplated by, an asset purchase agreement by and among HSCC or its Affiliate, the Seller and Default (the “Asset Purchase Agreement”), pursuant to which HSCC or such Affiliate shall purchase substantially all of the assets of Default.
(x) The Company shall have been released as a guarantor of any and all Company Indebtedness or Indebtedness of the Seller or any of its Affiliates, including, without limitation, as a guarantor under the Bank of America Agreements.
(y) The Seller and the Company shall have delivered to Buyer such other instruments, certificates, documents or materials as may be reasonably requested by Buyer in connection with the consummation of the transactions contemplated hereby.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Homeland Security Capital CORP), Stock Purchase Agreement (DJSP Enterprises, Inc.)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are Initial Closing is also subject to the satisfaction (of the following conditions, any one or waiver in writing more of which may be waived by Buyer:
(a) at Seller shall have performed in all material respects all of its material obligations and agreements hereunder required to be performed by it on or prior to the Closing of each of Initial Closing;
(b) the following conditions:
6.2.1 Each representation representations and warranty warranties of Seller Parent contained in Article IV of this Agreement and any certificate delivered pursuant hereto (other than Fundamental Representations), without giving effect to materiality, Material Adverse Effect or similar qualifications, shall be true and correct on at and as of the Initial Closing Date, with Date as if made at and as of the same force and effect as though Initial Closing Date (other than such representations and warranties had been made on and that by their terms address matters only as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a another specified date, in which case such representation or warranty shall have been be true and correct only as of such date), and (ii) to except where the extent that any inaccuracies in failure of such representations and warrantieswarranties to be so true and correct would not reasonably be expected to, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.;
6.2.2 (c) the Fundamental Representations of Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in Article IV of this Agreement Agreement, without giving effect to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligationsmateriality, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer Effect or similar qualifications, shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is be true and correct on in all material respects at and as of the Initial Closing Date as if made on such Date, except as set forth in the Update, at and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Initial Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer Date (except for (i) de minimis inaccuracies and (ii) such representations and warranties that by their terms address matters only as of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Scheduleanother specified date, which consents, approvals and actions shall be in form true and substance reasonably satisfactory to Buyer.correct only as of such date);
6.2.6 On the Closing Date, (d) Seller Parent shall have delivered to Buyer all a certificate signed by an officer of Seller, dated the following:Initial Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.02(a), Section 9.02(b) and Section 9.02(c) have been fulfilled;
(e) since the date of this Agreement, there has not been a Material Adverse Effect that is continuing;
(f) the Conversions shall have been completed;
(g) Seller shall have delivered to Buyer a written acknowledgment (which may be in the form of an email) from the landlord under the Palm Desert Lease, which acknowledges (i) stock certificates representing the Purchased Shares. Each such certificate evidencing extension of the Purchased Shares shall be duly endorsed in blankcurrent term of the Palm Desert Lease through November 30, or be accompanied by stock transfer powers duly executed in blank2023, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating that such extended term is subject to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.Palm Desert Lease (as currently amended); and
6.2.9 Buyer (h) Seller shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and delivered to Buyer (i) a duly executed consent from the Sellers, dated landlord under the date Raleigh Lease in respect of the Closingtransactions contemplated by this Agreement in the form attached hereto as Exhibit H, with such modifications as may be approved in writing by Buyer (such approval not to be unreasonably withheld, conditioned or delayed) and (ii) a duly executed letter agreement in respect of the tenant improvement allowance under the Raleigh Lease in the form and substance reasonably satisfactory attached hereto as Exhibit I, with such modifications as may be approved in writing by Buyer (such approval not to Buyerbe unreasonably withheld, conditioned or delayed).
Appears in 2 contracts
Sources: Asset and Equity Purchase Agreement (Del Frisco's Restaurant Group, Inc.), Asset and Equity Purchase Agreement (Del Frisco's Restaurant Group, Inc.)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are is subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each of the following conditions:
6.2.1 Each representation (a) the representations and warranty warranties of Seller Parent contained set forth in this Agreement Article II shall be true and correct on and in all material respects as of the Closing Date, with the same force Effective Date and effect as though such representations and warranties had been made on and as of the Closing Date, except ;
(ib) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty all actions shall have been true taken and correct as of such datecompleted by Seller or otherwise to vest all right, title and (ii) to the extent that any inaccuracies in such representations and warranties, individually or interest in the aggregateAcquired Assets in Buyer, have not hadin each case, free and would not reasonably be expected to have, a CRL Business Material Adverse Effect.clear of all Liens;
6.2.2 Seller Parent, Recap Subco and each (c) Seller shall have performed all obligations and agreements, and or complied with all its agreements and covenants and conditions, contained in this Agreement required to be performed or complied with by each under this Agreement as of them or prior to the Closing;
(d) no Action or on the Closing Date except to the extent that any breaches of such obligationsProceeding shall be pending or threatened wherein an unfavorable judgment, agreementsorder, covenants and conditionsdecree, individually stipulation or in the aggregate, have not had, and injunction would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement and to be rescinded following consummation or (iii) affect adversely the Internal Reorganization under right of Buyer to own, operate or control any of the Acquired Assets;
(ore) Seller shall have delivered to Buyer documents evidencing the release or termination of all Liens on the Acquired Assets, if any, as applicable, well as copies of Seller’s documents pertaining to the taking Seller’s foreclosure on Miravant and transfer of the indicated action Acquired Assets from Miravant Subsidiaries;
(f) All material third-party consents required to be obtained in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which will have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals obtained and actions shall will be in form full force and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceledeffect;
(iig) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.each Ancillary Agreement to. which it is a party;
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 (h) Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco such other certificates and the Sellers, dated the date of instruments as it shall reasonably request in connection with the Closing; and
(i) Seller shall have authorized Buyer to take possession or control of, the Acquired Assets on the Closing Date in form and substance reasonably satisfactory to Buyeraccordance with the terms of Section 1.4.
Appears in 2 contracts
Sources: Asset Purchase Agreement (DelMar Pharmaceuticals, Inc.), Asset Purchase Agreement (Adgero Biopharmaceuticals Holdings, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate effect the transactions contemplated by this Agreement at Closing are subject to the satisfaction (satisfaction, or waiver in writing by Buyer) , of the following conditions at or prior to the Closing Closing:
(a) (i) The representations and warranties of each Seller and Company contained in Sections 3.2(a), (b) and (d) (Capitalization and Title to Shares) and 3.3 (Authority for Agreement) of this Agreement shall be true and correct as of the following conditions:
6.2.1 Each representation and warranty date of Seller Parent contained in this Agreement and as of Closing as though made on the date of the Closing (except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct on and as of such earlier date); (ii) the representations and warranties of Seller and Company contained in the first sentence of Section 3.1(b) (Organization and Standing) and Section 3.4(a)(i) (No Conflict) of this Agreement shall be true and correct in all material respects both as of the date of this Agreement and as of Closing as though made on the date of the Closing Date, with and (iii) the same force representations and effect warranties of Seller and Company in this Agreement (other than the representations and warranties identified in clauses (i) and (ii)) shall be true and correct both as of the date of this Agreement and as of Closing as though made on the date of the Closing (except to the extent such representations and warranties had been made on and as of the Closing Date, except (i) expressly relate to the extent that any such representation or warranty is made as of a specified an earlier date, in which case such representation or warranty representations and warranties shall have been be true and correct on and as of such earlier date), except where the failure of the representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) does not have, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would could not reasonably be expected to have, have a CRL Business Material Adverse Effect.Effect on Company;
6.2.2 Seller Parent, Recap Subco and each (b) Seller shall have performed in all material respects the obligations and agreements, and complied with all covenants and conditions, contained in this Agreement required to be performed or complied with by each it under this Agreement;
(c) Since the date of them prior to or on the Closing Date except to the extent that this Agreement, there shall not have occurred any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.Effect on Company;
6.2.3 Buyer (d) Seller and Company shall have received delivered to Buyer a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations conditions specified in (a), (b) and warranties of (c) above is satisfied in all respects;
(e) Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all a certificate duly executed by Seller certifying that Seller is not a foreign person for purposes of FIRPTA such that Buyer will not be required to withhold any portion of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceledPurchase Price;
(iif) all stock certificates, minute books, stock books, ledgers Seller shall have delivered to Buyer evidence of the resignations of the officers and registers, corporate seals directors of Company and other corporate records relating Company Subsidiaries effective prior to or as of the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap SubsidiaryClosing;
(iiig) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5Buyer shall have successfully consummated the bridge financing pursuant to the Commitment Letter;
(ivh) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date a copy of the Closing, in form Escrow Agreement and substance reasonably satisfactory performed all actions required to Buyerbe performed simultaneously with the execution of such agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Sba Communications Corp), Stock Purchase Agreement (Sba Communications Corp)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are at the Closing shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Date, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent the Company contained in this Agreement Article III shall be true and correct on and in all material respects as of the Closing Date, with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all material respects as of such that specified date), and (ii) to except where the extent that any inaccuracies in failure of such representations and warrantieswarranties to be true and correct would not, individually or in the aggregate, have not had, and would not or reasonably be expected to have, have a CRL Business Material Adverse Effect; provided, that the representations and warranties of the Company contained in Section 3.02 shall be true and correct in all respects as of the Closing Date, with the same effect as though made at and as of such date, without exception for immaterial errors or otherwise.
6.2.2 Seller Parent(b) On or prior to Closing, Recap Subco and each Seller Buyer shall have satisfactorily completed its due diligence review of the Company and its business.
(c) On or prior to Closing, the Company shall have filed the Certificate of Designation for the Shares with the Illinois Secretary of State and delivered to Buyer evidence of the Illinois Secretary of State’s acceptance thereto.
(d) The Company shall have duly performed all obligations and agreements, and complied with all agreements, covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them it prior to or on the Closing Date except to the extent that any breaches Date.
(e) Buyer shall have received a certificate, dated as of such obligationsClosing Date and signed by a duly authorized officer of the Company, agreements, covenants and conditions, individually or that each of the applicable conditions set forth in the aggregate, this Section 6.02 have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effectbeen satisfied.
6.2.3 Buyer (f) B▇▇▇▇ shall have received a certificate of Seller Parent, dated the Closing Date and executed by Secretary or an officer of Seller Parent, to the effect that each Assistant Secretary (or equivalent officer) of the representations Company certifying (i) that attached thereto are true and warranties complete copies of Seller Parent contained in all resolutions adopted by the Company Board authorizing the execution, delivery and performance of this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement Transaction, and that all such resolutions are in full force and effect and are all the Internal Reorganization under (or, as applicable, the taking of the indicated action resolutions adopted in connection with the transactions contemplated by this Agreement and hereby,
(g) The Company shall have delivered, or caused to be delivered, to Buyer confirmation from the Internal Reorganization with respect to) Company that the contracts, agreements, leases, other instruments, licenses and other items which Shares being purchased at the Closing have been designated with an asterisk registered in Schedule 3.4 the Company’s books and records as outstanding in the name of the Disclosure Schedule, which consents, approvals Buyer and actions shall be in form free and substance reasonably satisfactory to Buyerclear of Encumbrances.
6.2.6 On (h) At the Closing DateClosing, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and from the Sellers, dated Company the date of the Closing, in form and substance reasonably satisfactory to BuyerDisclosure Schedule.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Yunhong Green Cti Ltd.), Stock Purchase Agreement (Yunhong Green Cti Ltd.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or waiver in writing (if permitted by Buyerapplicable Law) at or prior to the Closing of each of the following additional conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent contained TAT, Sellers and the Acquired Companies in this Agreement shall must be true and correct on in all material respects as of the date hereof and as of the Closing Date(with materiality being measured individually and on an aggregate basis with respect to all breaches of representations and warranties), with the same force and effect as though except for such representations and warranties had been made on that are qualified as to materiality or a “Material Adverse Effect,” each of which must be true and correct in all respects as of the date hereof and as of the Closing DateClosing, except (i) in each case to the extent that any such representation or and warranty is made speaks as of a specified any other specific date, in which case such representation or and warranty shall must have been true and correct as applicable as of such date.
(b) Each of the agreements and covenants of TAT, Sellers, and (ii) the Acquired Companies to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in by the Company pursuant to this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing DateDate shall have been duly performed and complied with in all material respects (it being understood that failure to deliver any Shares pursuant to, and in accordance with, Article III shall be deemed to be material).
6.2.5 (c) Since the date hereof, there shall not have been any Material Adverse Effect with respect to TAT, any Seller, or any Acquired Company.
(d) Buyer and Buyer’s Affiliate shall have received evidence satisfactory to Buyer of receipt consummated the equity financing contemplated by the letter agreement dated February 5, 2012 (the “Financing Letter”).
(e) Each of the consents Consents or approvals notices to the consummation of the transactions contemplated by this Agreement or from Governmental Authorities or other Persons listed on Schedule 8.3(e) must have been obtained and provided and must be in full force and effect.
(f) TAT, Sellers and the Internal Reorganization under Acquired Companies must have delivered or caused to be delivered each document that Section 3.2 and Section 3.3 require them to deliver.
(org) TAT, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement Sellers and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent Acquired Companies shall have delivered to Buyer all completed the transfers of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates assets as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized required under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller ParentSection 7.10.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Transatlantic Petroleum Ltd.), Stock Purchase Agreement (Transatlantic Petroleum Ltd.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate carry out the transactions contemplated by this Agreement are subject subject, at the option of Buyer, to the satisfaction (commercially reasonable satisfaction, or waiver in writing by Buyer) at or prior to the Closing of each , of the following conditions:
6.2.1 Each representation (A) All representations and warranty warranties of Seller Parent the Sellers and the Shareholders contained in this Agreement shall be true and correct on in all material respects at and as of the Closing, and the Sellers and the Shareholders shall have performed and satisfied in all material respects all agreements and covenants required by this Agreement to be performed and satisfied by them at or prior to the Closing.
(B) As of the Closing Date, with no suit, action or other proceeding (excluding any such matter initiated by or on behalf of Buyer) shall be pending or threatened before any court or governmental agency seeking to prohibit the same force and effect Closing as though such representations and warranties had been made on and as a result of the Closing Dateconsummation of this Agreement.
(C) Except for matters disclosed in Schedule 8(n)(A) or 8(n)(B), except (i) since the Balance Sheet Date and up to and including the extent that any such representation or warranty is made as of a specified dateClosing, in which case such representation or warranty there shall not have been true and correct as of such dateany event, and (ii) to the extent that any inaccuracies in such representations and warrantiescircumstance, change or effect that, individually or in the aggregate, had or might have not hada material adverse effect on the Sellers’ business, and would not reasonably be expected to haveoperations, a CRL Business Material Adverse Effectprospects, Properties or financial condition.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 (D) The Buyer shall have received a certificate the opinion of Seller Parent▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ P.C., counsel to the Sellers (“Company Counsel”), dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals , addressed to the consummation of the transactions contemplated by this Agreement Buyer and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to the Buyer, to the effect set forth on Exhibit 12(b)(D) hereto.
6.2.6 On the Closing Date, Seller Parent (E) The Sellers shall have delivered furnished Buyer with a certified copy of all necessary corporate action on its behalf approving the Sellers’ execution, delivery and performance of this Agreement.
(F) Buyer shall have received written evidence, in form and substance satisfactory to Buyer all Buyer, of the following:consent to the transactions contemplated by this Agreement of all governmental, quasi-governmental and private third parties (including, without limitation, persons or other entities leasing real or personal property to the Company) where the absence of any such consent would result in a violation of law or a breach or default under any agreement to which the Company is subject.
(iG) stock certificates representing No proceeding in which any of the Purchased Shares. Each such certificate evidencing Shareholders or the Purchased Shares Sellers shall be duly endorsed in blanka debtor, defendant or party seeking an order for its own relief or reorganization shall have been brought or be accompanied pending by stock transfer powers duly executed in blankor against such person under any United States, and shall be accompanied by all requisite documentary state or stock transfer taxes affixed thereto and canceled;foreign bankruptcy or insolvency law.
(iiH) all stock certificatesSatisfactory completion of business, minute books, stock books, ledgers legal and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and accounting due diligence by each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates Buyer and Buyer’s lender providing financing in those jurisdictions that do not issue such good standing certificates) from connection with the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporationtransactions contemplated hereby, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; andsigning of this Agreement.
(vI) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent[Intentionally Deleted].
6.2.7 Seller Parent, Recap Co (J) ▇▇▇▇▇ and each other stockholder of Recap Co (other than Buyer) ▇▇▇▇ shall have executed and delivered to Buyer the Investors' Agreementtheir respective Employment Agreements.
6.2.8 Buyer, Recap Co and Recap Subco (K) Sellers shall have received debt executed an appropriate notice of sale and equity proceeds request of continuance of the Kohler distribution agreement to Kohler in substantially the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyersame form attached as Exhibit 12(b)(K).
6.2.9 Buyer (L) Sellers shall have received an opinion filed a request for the Waiver of counsel for Seller Parent, Recap Co, Recap Subco Tax Lien and shall deliver such Waiver of Tax Lien promptly to the Sellers, dated Buyer upon receipt.
(M) Sellers shall have filed on the date of the Closingsigning of this Agreement a request for a certificate from the Massachusetts Department of Revenue as to the good standing of, in form and substance reasonably satisfactory the payment of taxes by, each of the Sellers as of the date of the signing of the Agreement and shall promptly deliver such certificate to Buyerthe Buyer upon receipt.
(N) The Sellers shall have simultaneously with the Closing of this Agreement executed the Owned Real Estate Leases and Landlord’s Agreements.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Colonial Commercial Corp), Asset Purchase Agreement (Colony Bankcorp Inc)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are is further subject to the satisfaction (or waiver in writing by Buyer) Buyer at or prior to the Closing of each Date of the following conditions:
6.2.1 Each representation (a) (i) each of the representations and warranty warranties of the Company and Seller Parent contained in Article II and Article III of this Agreement (other than the Fundamental Representations) which are qualified as to materiality shall be true and correct on as of the Signing Date and as of the Closing, as if made at and as of that time (other than such representations and warranties that expressly address matters only as of a certain date, which need only be true as of such certain date), and (ii) each of the representations and warranties of the Company and Seller contained in Article II and Article III of this Agreement (other than the Fundamental Representations) which are not qualified as to materiality shall be true and correct in all material respects as of the Signing Date and as of the Closing, as if made at and as of that time (other than such representations and warranties that expressly address matters only as of a certain date, which need only be true as of such certain date); provided, that the Fundamental Representations shall be true and correct in all respects (except for de minimis inaccuracies) as of the Signing Date, and at and as of the Closing Date, with the same force and effect as though if made anew at such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effecttime.
6.2.2 Seller Parent, Recap Subco (b) the Company and each Seller shall have performed all obligations and agreements, and complied in all material respects with all covenants and conditions, contained in obligations required by this Agreement to be performed or complied with by each of them on or prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.;
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect toc) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent Company shall have delivered to Buyer all of a certificate dated the following:
Closing Date, certifying that the conditions specified in Section 7.2(a) (iwith respect to the Company’s representations and warranties) stock certificates representing and Section 7.2(b) (with respect to the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, Company’s covenants and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceledobligations) have been fulfilled;
(iid) all stock certificatesSeller shall have delivered to Buyer a certificate dated the Closing Date, minute books, stock books, ledgers certifying that the conditions specified in Section 7.2(a) (with respect to Seller’s representations and registers, corporate seals warranties) and other corporate records relating Section 7.2(b) (with respect to the organization, ownership Seller’s covenants and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiaryobligations) have been fulfilled;
(iiie) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to there shall not have occurred a Material Adverse Effect on the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing DateCompany; and
(vf) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have item required to be executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco pursuant to Section 1.4(a) shall have received debt been so executed and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyerdelivered.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Vulcan Materials CO)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate close the transactions contemplated by this Agreement are is subject to the satisfaction (fulfillment or waiver in writing by the Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) No Governmental Authority has enacted, issued, promulgated, enforced, or entered any Governmental Order that is in effect and warranty has the effect of Seller Parent contained in making the transactions contemplated by this Agreement shall illegal, restraining or prohibiting the completion of such transactions, or causing any of such transactions to be rescinded following completion.
(b) All consents, authorizations, orders, and approvals from the Governmental Authorities and all other Persons referred to in Section 3.5 (including the Healthcare Licenses), in form and substance reasonably satisfactory to Buyer, have been obtained and delivered to Buyer, and no such consent, authorization, order, or approval has been revoked or includes any conditions or requirements.
(i) The Fundamental Representations are true and correct on and in all respects as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing, and (ii) the representations and warranties contained in Article 3 and Article 4 are true and correct in all material respects as of the Closing Date, with the same effect as though made at and as of the Closing (except (i) to the extent those representations and warranties that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all respects as of such that specified date).
(d) Seller has duly performed and complied in all material respects with all agreements, covenants, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them prior to it before or on at the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectClosing.
6.2.3 (e) Buyer shall have has received a certificate certificates of Seller Parent, dated good standing for the Closing Date and executed by an officer Company from the Secretary of Seller Parent, to the effect that each State of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correctDelaware.
6.2.4 (f) The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action Company has entered into an employment agreement with ▇▇▇▇ ▇▇▇▇▇ in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in a form and substance that is reasonably satisfactory to Buyer.
6.2.6 On (g) Buyer has received resignations from each of the Company’s officers and directors effective as of the Closing.
(h) Buyer has received a non-foreign affidavit dated as of the Closing from Seller in form and substance required under the Treasury Regulations issued pursuant to Section 1445 of the Code stating that Seller is not a “foreign person,” as defined therein.
(i) Buyer has received the certificates representing the Shares, endorsed in blank or accompanied by duly executed assignment documents together with the original corporate record book of the Company updated to the Closing.
(j) Seller has provided Buyer with evidence of product liability insurance coverage it is required to obtain under Section 6.10.
(k) Seller has provided Buyer a secretary's certificate, dated as of the Closing Date, Seller Parent shall have delivered as to Buyer all of the following:
(i) stock certificates representing resolutions adopted by the Purchased Shares. Each such certificate evidencing Board of Directors of the Purchased Shares shall be duly endorsed in blankCompany approving the Agreement and all other ancillary documents, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificatesthe Articles, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consentsthe Bylaws, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates Seller’s stock certificate, each as to in effect at the valid existence Closing, and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true the authority and correct copy incumbency of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws officers of the United States of America, certified as true Company executing this Agreement and correct by the Secretary any other documents required to be executed or Assistant Secretary of Seller Parentdelivered in connection therewith.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent contained in this Agreement Article IV (other than the Seller Fundamental Representations) shall be true and correct on and in all material respects as of the Closing DateDate and the Seller Fundamental Representations shall be true and correct in all respects, in each case, with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all material respects as of such that specified date); provided , and (ii) to the extent however , that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business warranties qualified by Material Adverse Effect.Effect or other materiality qualifier must instead be true and correct in all respects;
6.2.2 Seller Parent, Recap Subco and each (b) Seller shall have duly performed all obligations and agreements, and complied in all material respects with all agreements and covenants and conditions, contained in required by this Agreement to be performed or complied with by each of them prior to or on at the Closing;
(c) Seller shall have delivered to Buyer duly executed counterparts to the Transaction Documents (other than this Agreement and the Employment Agreements) and such other documents and deliverables set forth in Section 3.02(a);
(d) B▇▇▇▇ shall have received a certificate, dated the Closing Date except to and signed on behalf of Seller by a duly authorized officer (in such Person’s capacity as such and not individually), that each of the extent that any breaches of such obligations, agreements, covenants and conditions, individually or conditions set forth in Section 7.02(a)and Section 7.02(b) have been satisfied (the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.“Closing Certificate”);
6.2.3 (e) Buyer shall have received a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that Seller is not a foreign person within the meaning of Seller Parent, dated Section 1445 of the Closing Date and Code duly executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceledSeller;
(iif) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated Since the date of the Closingthis Agreement, in form and substance reasonably satisfactory to Buyer.there shall not have been a Material Adverse Effect;
Appears in 1 contract
Sources: Asset Purchase Agreement (Agriforce Growing Systems Ltd.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate carry out the transactions contemplated by this Agreement are subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each , of the following conditions:
6.2.1 Each representation (a) All representations and warranty warranties of Seller Parent the Company and the Shareholders contained in this Agreement shall be true and correct on in all material respects at and as of the Closing Date, with the same force and effect as though if such representations and warranties had been were made on at and as of the Closing, and the Company and the Shareholders shall have performed and satisfied in all material respects all agreements and covenants required by this Agreement to be performed and satisfied by it at or prior to the Closing.
(b) As of the Closing Date, except (i) no suit, action, injunction or other proceeding shall be pending or threatened before any court or governmental agency seeking to restrain Buyer, the extent that any such representation Company or warranty is made as of a specified date, in which case such representation the Shareholders or warranty shall have been true and correct as of such date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on prohibit the Closing Date except to or seeking Damages against Buyer, the extent that any breaches Company, the Assets or the Shareholders as a result of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement Agreement.
(c) The Company and the Internal Reorganization Shareholders shall have performed and complied with all of the covenants hereunder in all material respects through the Closing.
(d) Except for matters disclosed in Schedule 3.10(a) or 3.10(b) attached hereto, since December 31, 1999 and up to and including the Closing, there shall not have been any event, circumstance, change or effect that, individually or in the aggregate, may have a Material Adverse Effect.
(e) The Company and the Shareholders shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Sections 6.02 6.02(a)-(d) has been satisfied in all respects.
(f) The Company shall have furnished Buyer with a certified copy of all necessary corporate action on its behalf approving the Company's execution, delivery and performance of this Agreement.
(g) the Company and the Shareholders shall have delivered the opinion of Annis, Mitchell, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A., dated the Closing Date.
(h) ▇▇▇▇▇▇ shall have executed and delivered the ▇▇▇▇▇▇ Employment Agreement.
(i) ▇▇▇▇ shall have executed and delivered the ▇▇▇▇ Employment Agreement.
(j) All applicable waiting periods (and any extensions thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or otherwise been terminated and the Buyer, the Company and its Shareholders shall have received all other material authorizations, consents, and approvals of governments and governmental agencies;
(ork) All agreements, commitments and understandings between the Company and the Shareholders (or any Affiliate thereof) shall have been terminated in all respects on terms satisfactory to Buyer, and all obligations, claims or entitlements thereunder shall be unconditionally waived and released by the Shareholders and/or such Affiliates, as applicable, and written evidence thereof satisfactory in form and substance to Buyer shall have been delivered to Buyer.
(l) Buyer shall have completed its due diligence investigation, and the taking results thereof shall not have revealed that any of the indicated action representations of the Company and the Shareholders set forth herein are untrue or incorrect in any respect or otherwise be unsatisfactory to Buyer.
(m) All proceedings to be taken by the Company and the Shareholders in connection with the transactions contemplated by this Agreement hereby and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions all documents incident thereto shall be satisfactory in form and substance reasonably satisfactory to the Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion all such counterpart originals or certified or other copies of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closingsuch documents as it may reasonably request.
(n) Buyer shall have received written evidence, in form and substance reasonably satisfactory to Buyerit, of the consent to the transactions contemplated by this Agreement of all governmental, quasi-governmental and private third parties where the absence of any such consent would result in a violation of law or a breach or default under any agreement to which the Company is subject.
(o) Buyer shall have received the audit report of PriceWaterhouseCoopers with respect to the audited Financial Statements of the Company as of and for the year ended December 31, 1999, which audit report shall be without qualification and which audited Financial Statements shall not reflect any material adjustments from those referred to in Section 3.09.
(p) No proceeding in which the Shareholders or the Company shall be a debtor, defendant or party seeking an order for its own relief or reorganization shall have been brought or be pending by or against such person under any United States or state bankruptcy or insolvency law. The Buyer may waive any condition specified in this Section 6.02 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent Sellers contained in this Agreement Agreement, the Assignment and the other Transaction Documents, and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date, Date with the same force and effect as though made at and as of such date, except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in which case all respects.
(b) Sellers shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement, the Assignment and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date; provided that, with respect to agreements, covenants and conditions that are qualified by materiality, Sellers shall have performed such representation or warranty agreements, covenants and conditions, as so qualified, in all respects.
(c) At the Closing, the Company shall be free of (i) Indebtedness, including Related Party Indebtedness, except as otherwise agreed by the parties; (ii) other Liabilities, other than those Liabilities incurred and payable in the ordinary course of business consistent with past practices; and (iii) accrued salaries and payroll taxes in excess of the Accrued Salary and Payroll Tax Cap.
(d) No Action shall have been true and correct as of such datecommenced against Buyer, Sellers, or the Company which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(iie) All approvals, consents and waivers that are listed in Section 3.05 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the extent that Closing.
(f) From the date of this Agreement, there shall not have occurred any inaccuracies in such representations and warrantiesMaterial Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, have not hadwith or without the lapse of time, and would not reasonably be expected to have, result in a CRL Business Material Adverse Effect.
6.2.2 Seller Parent(g) Buyer shall be satisfied, Recap Subco in its reasonable business judgment, based on the information received from the Franchisees during the Franchise Status Calls, that the Franchisees do not have, and each Seller are not likely to raise, any additional material issues not otherwise disclosed herein based on prior actions or failures to act of the Company or Sellers or with respect to the transactions contemplated hereby.
(h) Sellers shall have performed all obligations duly executed and agreementsdelivered the Assignment to Buyer.
(i) Buyer shall have received a certificate, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on dated the Closing Date except to and signed by a duly authorized officer of Sellers, that each of the extent that any breaches of such obligations, agreements, covenants conditions set forth in Section 7.02(a) and conditions, individually or in the aggregate, Section 7.02(b) have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effectbeen satisfied.
6.2.3 (j) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each Seller Parentthat is an entity certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors or managers of such Seller, dated as applicable, authorizing the Closing Date execution, delivery and executed by an officer performance of Seller Parentthis Agreement, to the effect that each Assignment and the other Transaction Documents and the consummation of the representations transactions contemplated hereby and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Updatethereby, and that all such resolutions are in full force and effect and are all the Update resolutions adopted in connection with the transactions contemplated hereby and thereby.
(k) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each Seller that is an entity certifying the names and signatures of the officers of Sellers authorized to sign this Agreement, the Assignment and the Transaction Documents, and the other documents to be delivered hereunder and thereunder.
(l) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and correctcomplete copies of (i) the articles or certificate of organization or formation of the Company, as filed with the secretary of state or similar Governmental Authority of the State of Florida, (ii) the Operating Agreement of the Company as then in effect and (iii) a good standing certificate (or its equivalent) for the Company from the secretary of state or similar Governmental Authority of the State of Florida.
6.2.4 The Affiliates (m) Sellers shall have delivered, or caused the Company to deliver, to Buyer resignations of Parent, other than all of the CRL Business employees, who are directors managers and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer Company.
(n) Sellers shall have tendered their resignations delivered to Buyer a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that Sellers are not a foreign person within the meaning of Section 1445 of the Code.
(o) Sellers shall have delivered to Buyer evidence reasonably satisfactory to Buyer that Sellers have or have caused the Company to: (i) adopted resolutions and taken such other actions as are required to terminate the Benefit Plans effective immediately prior to the Closing Date; (ii) ceased contributions under the Benefit Plan effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement ; and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection c) filed with the transactions contemplated IRS such forms as may be required by this Agreement and the Internal Reorganization with respect to) the contractsapplicable Law to terminate such Benefit Plans, agreements, leases, other instruments, licenses and other items all of which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent (p) Sellers shall have delivered to Buyer all such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement, including the Release Agreements and the evidence of termination of the following:
(i) stock certificates representing Ultimate Net Loss Obligation Agreement and the Purchased Shares. Each such certificate evidencing exercise or termination of the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance Grant of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions Options described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller ParentSection 2.03(c).
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Fat Brands, Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are will be subject to the satisfaction fulfillment (or waiver in writing by Buyer) at on or prior to the Closing Date (and, if fulfilled prior to the Closing Date, that condition must remain fulfilled on the Closing Date) of each of the following conditions:
6.2.1 Each representation and warranty of Seller Parent contained in this Agreement shall be true and correct on and as (a) As of the Closing Date, with each of the same force and effect as though such representations and warranties had been made on of Sellers contained in Article III and as Article IV is true and correct in all material respects (other than those representations and warranties of the Closing DateSeller that are qualified by materiality or Material Adverse Effect, which will be true and correct in all respects), except (i) as affected by transactions contemplated or permitted by this Agreement, and (ii) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall will have been true and correct as of such specified date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco (b) Sellers and each Seller shall the Companies have performed and complied, in all obligations and agreementsmaterial respects, and complied with all covenants and conditions, contained in agreements required by this Agreement to be performed or complied with by each of them on or prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 (c) Buyer shall has received (i) a certificate by a duly authorized officer of each of Sellers dated the Closing Date, certifying that the conditions described in Section 9.2(a) and Section 9.2(b) have received evidence satisfactory been satisfied.
(d) On the Closing Date, no Proceeding (excluding any Proceeding initiated by Buyer or any of its Affiliates) is pending or threatened seeking to Buyer of receipt of the consents restrain, prohibit, or approvals to obtain damages or other relief in connection with this Agreement or the consummation of the transactions contemplated by this Agreement Agreement.
(e) Seller has obtained the agreement of the lender or lenders under the Credit Facilities to release, upon the funding of the Adjusted Purchase Price, its Lien on the Midstream Assets and the Internal Reorganization Assigned Assets and each Company’s guaranty under the Credit Facilities and delivered evidence thereof to Buyer.
(orf) No order, as applicablewrit, the taking injunction or decree will have been entered and be in effect by any court or any Governmental Entity of the indicated action competent jurisdiction, and no statute, rule, regulation or other requirement will have been promulgated or enacted and be in connection with effect, that on a temporary or permanent basis restrains, enjoins or invalidates the transactions contemplated by this Agreement.
(g) Buyer has received from Sellers, the Companies or any other party all other agreements, instruments and documents that are required by the terms of this Agreement to be executed or delivered to Buyer, prior to or in connection with the Closing, including those described in Section 2.2(a).
(h) The consummation of the transactions contemplated under the terms of this Agreement is not prevented from occurring by (and the Internal Reorganization with respect torequired waiting period, if any, has expired under) the contracts, agreements, leases, other instruments, licenses HSR Act and other items which have been designated with an asterisk in Schedule 3.4 the rules and regulations of the Disclosure Schedule, which consents, approvals Federal Trade Commission and actions shall be in form and substance reasonably satisfactory to Buyerthe Department of Justice.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated Since the date of this Agreement, the Closing, in form and substance reasonably satisfactory to BuyerCompanies have not experienced a Material Adverse Effect.
Appears in 1 contract
Sources: Partnership Interest Purchase and Sale Agreement (Crosstex Energy Lp)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) All approvals, consents, filings and warranty of Seller Parent contained in this Agreement shall be true and correct on and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty waivers shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(b) This Agreement and any other transaction document shall have been executed and delivered by the parties thereto and true and correct as of such date, and (ii) complete copies thereof shall have been delivered to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectBuyer.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer (c) ▇▇▇▇▇ shall have received a certificate of Seller Parentthe Secretary or an Assistant Secretary (or equivalent officer) of Australian Company certifying:
(i) that attached thereto are true and complete copies of all resolutions and other consents adopted by the board of directors of Australian Company authorizing and approving the execution, dated the Closing Date delivery, filing and executed by an officer performance of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, any other transaction document and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement hereby and the Internal Reorganization under (orthereby, and that all such resolutions and consents are in full force and effect as applicable, the taking of the indicated action Closing and are all the resolutions and consents adopted in connection with the transactions contemplated hereby and thereby;
(ii) that attached thereto are true and complete copies of the certificate of incorporation and by-laws of the Company and that such organizational documents are in full force and effect as of the Closing; and
(iii) the names and signatures of the officers of Australian Company authorized to sign this Agreement or any transaction document and the other documents to be delivered hereunder and thereunder.
(d) ▇▇▇▇▇ shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Australian Company certifying:
(i) that attached thereto are true and complete copies of all resolutions and other consents adopted by the board of directors of Australian Company authorizing and approving the execution, delivery, filing and performance of this Agreement and any other transaction document and the Internal Reorganization consummation of the transactions contemplated hereby and thereby, and that all such resolutions and consents are in full force and effect as of the Closing and are all the resolutions and consents adopted in connection with respect tothe transactions contemplated hereby and thereby; and
(ii) the contracts, agreements, leases, other instruments, licenses names and other items which have been designated with an asterisk in Schedule 3.4 signatures of the Disclosure Schedule, which consents, approvals officers of Australian Company authorized to sign this Agreement or any transaction document and actions shall the other documents to be in form delivered hereunder and substance reasonably satisfactory to Buyerthereunder.
6.2.6 On (e) The Company shall have executed contracts with all distributors required by the Closing Date, Seller Parent Buyer prior to Closing.
(f) The Company shall have delivered to Buyer all (i) a good standing certificate (or its equivalent) for the Company from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which the Company is organized and (ii) a foreign qualification certificate (or its equivalent) for the Company from the secretary of state or similar Governmental Authority of each jurisdiction in which the Company has qualified, or is required to qualify, to do business as a foreign corporation.
(g) The Company shall have delivered, or caused to be delivered, to Buyer each of the following, each in form and substance satisfactory to Buyer:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceledShares;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating an opinion of legal counsel to the organization, ownership Australian Company and maintenance the Company regarding the legality of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiarytransactions contemplated herein;
(iii) original or copies resignations of consents, filings, authorizations, approvals the Company’s officers and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;directors specifically requested by the Buyer
(iv) certificates such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct transactions contemplated by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' this Agreement.
6.2.8 Buyer, Recap Co and Recap Subco (h) The Company shall have received debt and equity proceeds in fully complied with, or obtained appropriate consents or waivers with respect to, its obligations under each of the amounts and on the terms and conditions set forth in the Commitment Letters agreements or such other terms and conditions satisfactory documents, including with respect to Buyerany outstanding rights of first refusal, rights of first offer, pre-emptive rights or anti-dilution rights or redemption or repurchase rights.
6.2.9 Buyer (i) The Company shall have received an opinion caused all Key Employees to execute and shall deliver to Buyer copies of counsel non-competition, non-solicitation, non-hire, non-disclosure and assignment of inventions agreement executed by each such Key Employee effective for Seller Parent, Recap Co, Recap Subco the duration of such employee’s employment and the Sellers, dated the date of the Closingone (1) year thereafter, in form and substance reasonably satisfactory acceptable to BuyerBuyer and the directors of the Company.
(j) The ASX approving Australian Company’s proposal to dispose of its main undertaking, being the Company, pursuant to ASX Listing Rule 11.1.
(k) Australian Company satisfying all of the conditions imposed by ASX in granting the approval pursuant to ARTICLE 5.02(i), including but not limited to, Australian Company obtaining the approval of its shareholders for the purposes on ASX Listing Rule 11.2 and for all other purposes.
(l) The Company, upon the execution of this Agreement but after an announcement is released on ASX by Australian Company, must publish an announcement in local newspapers pursuant to Indonesian law.
(m) The Company shall receive approval from all lenders whose Liabilities are classified as “Borrowings” on the Company’s Balance Sheet.
(n) The Company has notified its employees pursuant to Indonesia’s “Manpower Law”.
Appears in 1 contract
Sources: Securities Purchase Agreement (Society Pass Incorporated.)
Conditions to Obligations of Buyer. The obligations of Buyer and Standard Pacific to consummate effect the transactions contemplated by this Agreement Stock Purchase are also subject to the satisfaction (or waiver in writing by Buyer) Buyer and Standard Pacific at or prior to the Closing of each Date of the following conditions:
6.2.1 Each representation (a) the representations and warranty warranties of Seller Parent contained the Sellers set forth in this Agreement qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct on in all material respects, as of the date of this Agreement and as of the Closing Date, with the same force and effect Date as though such representations and warranties had been made on and as of the Closing Date, Date (except (i) to the extent that any such representation or warranty is made representations and warranties speak as of a specified an earlier date, in which case such representation or warranty shall have been be true and correct as of such earlier date);
(b) the Sellers shall have performed in all material respects all obligations required to be performed by them under this Agreement at or prior to the Closing Date;
(c) Buyer shall have been furnished with a certificate, executed by each of the Sellers, dated the Closing Date, certifying as to the fulfillment of the conditions in Sections 9.2(a) and (iib);
(d) any consents required to be obtained from any Governmental Entities or other Persons shall have been obtained and delivered to Buyer (including, without limitation, any qualifications or other consents necessary from the State of Florida with respect to the extent creation and registration of Colony Communities or any qualification to do business of any general or limited partner of Colony Communities);
(e) Buyer shall have received an opinion dated the Closing Date of counsel to Sellers, substantially in the form of Exhibit E;
(f) there shall not be pending or threatened by any Governmental Entity any suit, action or proceeding (or by any other Person any suit, action or proceeding which has a reasonable likelihood of success), (A) seeking to obtain from Buyer in connection with the purchase and sale of the Shares or the other transactions contemplated hereby any money damages that are material in relation to Buyer taken as a whole; (B) seeking to prohibit or limit the ownership or operation by Buyer, or any inaccuracies of the Company, of any material portion of the business or assets of Buyer or the Company taken as a whole, or to compel Buyer, or any of the Company to dispose of or hold separate any material portion of the business or assets of Buyer or the Company taken as a whole, in such representations each case as a result of the purchase and warrantiessale of the Shares or any of the other transactions contemplated by this Agreement; (C) seeking to impose limitations on the ability of Buyer to acquire or hold, or exercise full rights of ownership of, any of the real property that is the subject of the Transaction Documents, the Shares, including the right to vote the Shares on all matters properly presented to the stockholders of the Company; or (D) seeking to prohibit Buyer from effectively controlling in any material respect the business or operations of the Company;
(g) since the date of this Agreement, there shall have been no event, change, occurrence or circumstance having, or which could have, individually or in the aggregate, have not had, and would not reasonably be expected to have, aggregate a CRL Business Material Adverse Effect.Effect on the Company or any of the real property that is the subject of the Transaction Documents;
6.2.2 Seller Parent, Recap Subco and each Seller (h) Buyer shall have performed all obligations received the resignations of the director and agreements, and complied with all covenants and conditions, contained in this Agreement officers of the Company pursuant to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.Section 6.9;
6.2.3 (i) Buyer shall have received a certificate of Seller Parent, dated duly executed and delivered copy of:
(A) the Closing Date and executed by an officer of Seller Parent, to HBG Assignment Agreement;
(B) the effect that each of the representations and warranties of Seller Parent contained in this Florida Pines Purchase Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the closing documents evidencing consummation of the transactions contemplated by this the Florida Pines Purchase Agreement (including, without limitation, executed original mortgage reconveyances, lien releases, deeds and title insurance in the name of Colony Communities);
(C) the High Grove Purchase Agreement and the Internal Reorganization under (or, as applicable, the taking closing documents evidencing consummation of the indicated action in connection with the transactions contemplated by this the High Grove Purchase Agreement (including, without limitation, executed original mortgage reconveyances, lien releases, deeds and title insurance in the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 name of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing DateColony Communities); and
(vD) a true and correct copy completed United States Internal Revenue Service Form 8023 from each of the certificate Sellers and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
(E) a release of incorporation or articles of organizationall guaranties, indemnities and similar agreements made by the Company in such form as is acceptable to the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws Buyer in its sole discretion;
(j) all assets of the United States Company and all of America, certified as true the real property that is the subject of the Transaction Documents shall be free and correct by the Secretary or Assistant Secretary clear of Seller Parent.
6.2.7 Seller Parent, Recap Co all Liens and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion original UCC Termination Statements and mortgage reconveyances suitable for filing with the appropriate authorities to evidence the release of counsel for Seller Parent, Recap Co, Recap Subco such Liens;
(k) the agreements listed on Schedule 3.1(b) shall have been terminated; and
(l) all bonus or other compensation plans or arrangements between the Company and the Sellers, dated the date either of the ClosingSellers that are not applicable to employees of the Company generally shall have been terminated, except for those that are specifically approved in form and substance reasonably satisfactory to writing by the Buyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Standard Pacific Corp /De/)
Conditions to Obligations of Buyer. The obligations of the Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by the Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of the Seller Parent contained in this Agreement Article 6 that are qualified by materiality shall be true and correct on and in all respects as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct as of that specified date); The representations and warranties of the Seller contained in ARTICLE 6 that are not qualified by materiality shall be true and correct in all material respects as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, which shall be true and correct in all material respects as of that specified date);
(iib) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each The Seller shall have duly performed all obligations and agreements, and complied in all material respects with all agreements and covenants and conditions, contained in required by this Agreement to be performed or complied with by each of them the Seller prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectDate.
6.2.3 (c) The Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 9.2(a) and Section 9.2(b) has been satisfied.
(d) The Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer Secretary (or equivalent officer) of Seller Parentcertifying that attached thereto are (i) true and complete copies of all resolutions adopted by the board of directors or board of managers, to as applicable, of Seller authorizing the effect that each execution, delivery and performance of this Agreement and the consummation of the representations transactions contemplated hereby, and warranties of Seller Parent contained that all such resolutions are in this Agreement is full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby, and (ii) true and correct on copies of the Closing Date as if made on such Datearticles of incorporation, except as set forth articles of organization, bylaws, operating or other constituent documents of Seller in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective effect as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect toe) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreementa shareholder agreement as prepared and approved by Buyer’s attorney.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate effect the transactions purchase of the Purchased Assets and the assumption of the Assumed Liabilities and Assumed Contracts contemplated by this Agreement are shall be subject to the satisfaction (or waiver in writing by Buyer) fulfillment at or prior to the Closing of each Date of the following additional conditions:
6.2.1 Each representation (a) Seller shall have performed and warranty complied in all material respects with the covenants contained in this Agreement which are required to be performed and complied with by Seller on or prior to the Closing Date and the representations and warranties of Seller Parent contained which are set forth in this Agreement shall be true and correct on in all material respects as of the date of this Agreement (except to the extent that any such representation and warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, Date (except (i) to the extent that any such representation or warranty is made speaks as of a specified particular date, in which case such representation or warranty representations and warranties shall have been be true and correct in all respects as of such other date, ) as though made at and as of the Closing Date;
(iib) to To the extent that any inaccuracies in such representations and warrantiesBuyer has offered compensation to each of the Key Employees which, individually or in the aggregate, have is comparable to each such employee's current compensation from Seller, does not hadrequire such employee to relocate and is for a position with job duties similar to each such employee's current position and duties with the Seller, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them the Key Employees shall be willing and able to enter into employment agreements with Buyer, pursuant to which each such Key Employee shall agree to remain with the Buyer after the Closing with compensation comparable to such employees' current compensation with the Seller in the same proximate location of each such employee's current employment and with job duties and position similar to such employee's current duties and position with the Seller;
(c) There shall not be any material loss of Seller's customer base prior to or on the Closing Date except to the extent (for purposes of this provision, material loss shall mean financial performance of Seller that any breaches of such obligations, agreements, covenants and conditions, individually or results in maintenance revenues being at least 20% lower than amounts projected in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.Budget);
6.2.3 (d) Buyer shall have received a certificate from an authorized officer of Seller ParentSeller, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date., to the effect that, to such officer's knowledge, the conditions set forth in Sections 8.2(a) and 8.2(b) have been satisfied;
6.2.5 (e) the Sale Order provides that any and all of the Encumbrances (other than Permitted Liens) on the Purchased Assets shall, upon Closing, attach only to the proceeds of such Purchased Assets and not to the Purchased Assets; and
(f) Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk to be delivered to it pursuant to Section 4.2. Any condition specified in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions this Section 8.2 may be waived by Buyer; provided that no such waiver shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to effective against Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which unless it is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to a writing executed by Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate effect the transactions contemplated by this Agreement are shall be subject to the satisfaction (or waiver in writing by Buyer) fulfillment at or prior to the Closing of each Date of the following additional conditions:
6.2.1 Each representation (a) There shall not have occurred and warranty be continuing any event or events, either individually or in the aggregate, which would have a material and adverse effect on the property, business, operations, prospects or condition (financial or otherwise) of Seller Parent PLD or PeterStar;
(b) C&W shall have performed and complied with in all material respects the covenants and agreements contained in this Agreement required to be performed and complied with by it at or prior to the Closing Date, and the representations and warranties of C&W set forth in this Agreement, giving effect to the amendment or supplement of any schedule pursuant to Section 5.8 hereof, shall be true and correct on in all material respects as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as ;
(c) Buyer shall have received stock certificates representing all of the Closing DatePLD Shares, except (i) the CIBBV Exchange Shares and the Holdings Shares and the certificate or other instrument representing the PLD Warrant, each duly endorsed in blank or accompanied by duly executed instruments of transfer, together with any other documents that are necessary to transfer to Buyer good and marketable title to the extent that any such representation or warranty is made PLD Shares, the CIBBV Exchange Shares, the PLD Warrant and the Holdings Shares, as of a specified date, the case may be;
(d) The conditions to closing under the Asset Exchange Agreement (as defined in which case such representation or warranty Section 8.8 hereof) annexed hereto as Schedule 6.2 shall have been true satisfied or waived by Buyer;
(e) Buyer and correct PLD shall have executed and delivered a Director Nomination Agreement dated April 19, 1998, containing terms and condi tions substantially as of such dateset forth in the draft thereof previously delivered by Buyer to C&W, and such agreement shall be in full force and effect;
(iif) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate from an authorized officer of Seller ParentC&W, dated the Closing Date, to the effect that to the officer's knowledge, the conditions set forth in Section 6.2 (b) have been satisfied; and
(g) Buyer shall have received opinions from counsel to C&W, dated the Closing Date and executed by an officer of Seller Parent, satisfactory in form and substance to Buyer and its counsel,
(A) substantially to the effect that each that:
(i) C&W is a corporation duly organized and validly existing under the laws of the representations jurisdiction of its organization and warranties of Seller Parent contained in has the corporate power and authority to execute and deliver this Agreement is true and correct on to consummate the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco transactions contemplated hereby; and the Recap Subsidiaries execution and who have been requested to resign by Buyer shall have tendered their resignations effective as delivery of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to this Agreement and the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which hereby have been designated with an asterisk in Schedule 3.4 duly authorized by requisite corporate action taken on the part of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceledC&W;
(ii) all stock certificatesthis Agreement has been executed and delivered by C&W and is a valid and binding obligation of C&W, minute booksenforceable against it in accordance with its terms, stock booksexcept (A) that such enforcement may be subject to bankruptcy, ledgers insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and registers, corporate seals (B) that the remedy of specific performance and injunctive and other corporate records relating forms of equitable relief may be subject to certain equitable defenses and to the organization, ownership and maintenance discretion of Recap Subco and each Recap Subsidiary the court before which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiaryproceeding therefore may be brought;
(iii) original C&W, by reason of delivery of certificates for or copies other instruments representing the PLD Shares in the name of consentsBuyer, filings, authorizations, approvals will cause Buyer to own such shares free and other actions described clear of any adverse claim (as defined in Sections 5.5.5, 6.1.1(bArticle 8 of the Uniform Commercial Code as in effect in the State of New York) or 6.2.5;as of the Closing date; and
(ivB) certificates in respect of Bermuda law, in relation to the Holdings Shares, an opinion customary for Bermuda counsel to give in relation to the legal title obtained by the person registered in the share register of a company incorporated in Bermuda Such opinions may expressly rely as to the valid existence matters of fact upon certifi ▇▇▇▇▇ furnished by C&W and good standing of Recap Subco appropriate officers and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity directors of each of such Person's respective jurisdiction PLD, Holdings and PeterStar and by public officials.
(h) Buyer shall have received a copy of incorporation, organization a compliance certifi cate from the Registrar of Companies of Bermuda confirming that Holdings is not in default of any filing or formation, as fees due to be made to the case may beBermuda Government, dated as of a date within thirty (30) days of 5 Business Days prior to the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are and the Sub-Agreements shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent the Company contained in this Agreement Article III shall be true and correct on and in all material respects as of the Closing Date, Date with the same force and effect as though such representations and warranties had been made on at and as of the Closing Datesuch date, except (i) to the extent those representations and warranties that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all material respects as of such that specified date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually warranties that have qualifications as to materiality or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectEffect shall be true and correct in all respects and (iii) the Company Group Fundamental Representations shall be true and correct in all respects.
6.2.2 Seller Parent, Recap Subco and each Seller (b) The Company shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them it prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectDate.
6.2.3 (c) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of the Company, that each of the conditions set forth in Section 6.02(a) and Section 6.02(b) have been satisfied.
(d) All closing conditions contained in each of the Sub-Agreements to which Buyer’s obligations to consummate the transactions contemplated thereunder are subject shall have been satisfied.
(e) Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed issued by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each the State of such Person's respective jurisdiction of incorporation, organization or formation, as the case may beDelaware, dated as of a date within thirty five Business Days prior to the Closing Date (30) days with a bringdown of good standing within one Business Day of the Closing Date; and), as to the good standing of the Company in such state.
(vf) a true The Company and correct copy any relevant Subsidiary of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) Company shall have executed and delivered the Trademark License Agreement to Buyer and the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco Company shall have received debt executed and equity proceeds in delivered the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory Transition Services Agreement to Buyer.
6.2.9 (g) The Company shall have received one or more payoff letters in form reasonably satisfactory to Buyer and the Company (i) indicating that, upon payment of a specified amount, such Closing Indebtedness referenced therein shall be fully paid and discharged and (ii) authorizing filing of UCC-3 termination statements with respect to any blanket financing statements filed against the Transferred Assets to secure any Closing Indebtedness.
(h) Since the date hereof, there shall not have occurred any Material Adverse Effect.
(i) Buyer shall have received an opinion (i) the financial statements set forth in Section 5.13(c) (without regard to the approximate date of counsel for Seller Parent, Recap Co, Recap Subco delivery set forth therein and the Sellersactual date such financial statements are received by Buyer); and, dated (ii) if the date Closing has not occurred on or prior to February 1, 2014, Buyer shall have received the financial statements set forth in Section 5.13(d).
(j) The Company shall have received consents of third parties set forth on Section 6.02(j) of the Closing, in form and substance reasonably satisfactory to BuyerDisclosure Schedule.
Appears in 1 contract
Sources: Master Transaction Agreement (Carlisle Companies Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by under this Agreement are subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each of the following conditions, but Buyer may waive compliance with any such conditions in writing:
6.2.1 Each representation (a) All representations and warranty warranties of Seller Parent Sellers contained in this Agreement shall will be true and correct on in all material respects (if not qualified by materiality) or in all respects [*] Indicates confidential text omitted and filed separately with the Securities and Exchange Commission. (if qualified by materiality) at and as of the Closing Date, with the same force and effect as though such representations and warranties had been were made on at and as of the Closing DateClosing, except (i) to the extent that any such representation or warranty is made for those representations and warranties which address matters only as of a specified date, in particular date (which case such representation or warranty shall have been will be true and correct only as of such date), and (ii) Buyer will have received a certificate to such effect, in form and substance reasonably satisfactory to Buyer, executed on behalf of the extent that any inaccuracies in such representations Company by an executive officer of the Company and warranties, individually or in by the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectStockholders.
6.2.2 Seller Parent, Recap Subco and each Seller shall (b) Sellers will have performed all obligations and agreements, and complied in all material respects with all the covenants and conditions, contained in agreements required by this Agreement to be performed or complied with by each of them at or prior to or on the Closing Date except Closing, including without limitation the delivery of all items required to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not hadbe delivered by them pursuant to Section 2.5, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall will have received a certificate to such effect, in form and substance reasonably satisfactory to Buyer, executed on behalf of Seller Parent, dated the Closing Date and executed Company by an executive officer of Seller Parentthe Company and by the Stockholders.
(c) All contractual and governmental consents, approvals, orders, licenses, bonds or authorizations (including, without limitation, those under the HSR Act) set forth on Schedule 6.1(c)(i) will have been obtained and all contractual or governmental notices set forth on Schedule 6.1(c)(ii) will have been given.
(d) There will be no pending or threatened litigation in any court or any proceeding before or by any Governmental Body to the effect that each of the representations and warranties of Seller Parent contained in restrain or prohibit or obtain damages or other relief with respect to this Agreement is true and correct on or the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents Seller Documents or approvals to the consummation of the transactions contemplated by this Agreement and or as a result of which Buyer could be required to dispose of any assets or operations of Buyer or its Affiliates (including any Material Assets or material operations to be acquired) or to comply with any material restriction on the Internal Reorganization under manner in which Buyer or its Affiliates conduct their operations (or, as applicable, including the taking operations of the indicated action in connection with Company).
(e) All Liens on the transactions contemplated by this Agreement assets of the Company or the Shares, other than Liens on assets identified on Schedule 3.6(b) to remain after the Closing, and any guaranty of the Internal Reorganization Company (including, without limitation, any guaranty for obligations of MSI) will have been released or the Stockholders shall have agreed to indemnify the Buyer with respect to) the contracts, agreements, leases, other instruments, licenses to any payments that become due thereunder without regard to any limitations on indemnification set forth in Article VII and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall Sellers will have delivered to Buyer all executed UCC-3 termination statements or other releases satisfactory to Buyer to evidence such releases.
(f) Seller will have obtained releases in a form reasonably satisfactory to the Buyer with respect to the employees listed on Schedule 6.1(f) and the matters set forth opposite such employees’ names.
(g) Sellers will have delivered to Buyer a legal opinion of Sellers’ counsel, substantially in the following:form of Exhibit B.
(h) As evidenced by a binder or endorsement issued by the insurance company for each applicable policy, the Company will have purchased a three-year extended reporting period on the Company’s current policy that covers directors’ and officers’ insurance and indemnification, employment practices liability and fiduciary liability insurance. [*] Indicates confidential text omitted and filed separately with the Securities and Exchange Commission.
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares The Company 401(k) Plan shall be duly endorsed have been terminated as described in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;Section 5.15.
(iij) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco The employment related agreements described on Schedule 6.1(j) shall have been either terminated or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;amended as set forth on Schedule 6.1(j).
(iiik) original or copies of consents, filings, authorizations, approvals and other actions The VRP shall have been terminated as described in Sections 5.5.5, 6.1.1(b) or 6.2.5;Section 5.19.
(ivl) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) The Stockholders shall have executed and delivered to Buyer the Investors' Agreementa copy of IRS Form 8023.
6.2.8 Buyer, Recap Co and Recap Subco (m) The Stockholders shall have received debt terminated the stockholder’s agreement listed on Schedule 3.4 and equity proceeds in the amounts Company shall have terminated the stock option plan listed on Schedule 3.4.
(n) The Company shall have terminated the Amended and on Restated Revolving Line of Credit Loan Agreement and Security Agreement dated September 29, 2005, as amended, with Wachovia Bank, National Association, and all agreements relating thereto.
(o) The Company shall have reported the terms and conditions matter set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyeron Schedule 6.1(o) as a claim under its employment practices liability insurance.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the purchase of the Assets and the other transactions contemplated by this Agreement are hereby at the Closing shall be subject to the satisfaction fulfillment (or waiver in writing by Buyer) at on or prior to the Closing Date, of each of the following additional conditions:
6.2.1 7.2.1 Each representation of the representations and warranty warranties of Seller Parent contained in this Agreement or any other loan or other agreement to which Buyer and Seller are a party that is qualified as to materiality shall be true and correct and each such representation and warranty that is not so qualified shall be true and correct in all material respects, in each case on the date hereof and at and as of the Closing Date, with the same force and effect Date as though such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each . Seller shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement and any other loan or other agreement to which Buyer and Seller are a party to be performed or complied with by each of them it prior to or on the Closing Date except Date.
7.2.2 Since the date hereof, there shall not have occurred any (i) Material Adverse Effect (including any Material Adverse Effect due to any pending or threatened litigation) on the extent that any breaches of such obligations, agreements, covenants and conditions, individually Business or the Assets; or (ii) material change in the aggregateBusiness, have not hadthe Assets, and would not reasonably be expected to haveany of Seller's Contracts or Commitments (other than its actual completion or progress toward the same), a CRL Business Material Adverse Effector Seller's financial condition, prospects or operations.
6.2.3 Buyer 7.2.3 Seller shall have received delivered to Buyer a certificate of Seller Parentcertificate, dated the Closing Date and executed signed by an officer of Seller Parenta duly authorized officer, to the effect that each of the representations Section 7.2.1 and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correctSection 7.2.2.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 7.2.4 Buyer shall have received evidence satisfactory from Seller a certificate, dated the Closing Date and signed by the secretary or equivalent officer of Seller, certifying to each of the following items of Seller, which shall be attached thereto: (i) copies of its Articles of Incorporation, and all amendments thereof to date, certified as of a recent date by the appropriate department or agency of the State of Nevada; (ii) copies of its Bylaws, and all amendments thereof to date; (iii) specimen signatures of its incumbent officers; (iv) certificates of good standing (or local law equivalent) of a recent date, certified by the Secretary of State or other appropriate official of each other state in which it is qualified to do business; and (vi) records of all action taken by Seller which are required by applicable Law approving this Agreement and the transactions contemplated herein.
7.2.5 Seller shall have filed or supplied, or shall have caused to be filed or supplied, all applications, notifications and information required to be filed or supplied by Seller pursuant to applicable Law in connection with this Agreement, the sale and transfer of the Assets pursuant hereto and the consummation of the other transactions contemplated hereby. Seller shall have obtained and shall have delivered to Buyer copies of receipt all governmental and non-governmental Consents required to be obtained by Seller in connection with the execution and delivery of the consents or approvals to this Agreement and the consummation of the transactions contemplated by hereby. No Consent so obtained shall: (i) have been conditioned upon the modification, cancellation or termination of any Contract, right, license or permit of Seller; (ii) impose on the Business or the Assets after the Closing any condition, provision or requirement not presently imposed upon thereon, or any condition that would be more restrictive after the Closing on the Business or the Assets than the conditions presently imposed thereon; (iii) necessitate the payment of premium or penalty by, or loss of benefit to, Buyer as successor owner of the Business and the Assets or necessitate an increase in tangible net worth of the Assets; or (iv) impose a requirement on Buyer or its Subsidiaries that, in Buyer's reasonable judgment, shall have a Material Adverse Effect on Buyer or its Subsidiaries.
7.2.6 All corporate and other proceedings of Seller in connection with this Agreement and the Internal Reorganization under (ortransactions contemplated hereby and thereby, and all documents and instruments incident thereto, shall be reasonably satisfactory in form and substance to Buyer, and Buyer shall have received from Seller all such documents and instruments, or copies thereof, certified if requested, as applicablemay be reasonably requested.
7.2.7 Seller shall have delivered to Buyer at the Closing all documents, certificates and agreements necessary to transfer to Buyer title to the taking Assets, free and clear of the indicated action in connection with the transactions contemplated by this Agreement any and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Scheduleall Liens thereon, which consentsdocuments, approvals certificates and actions agreements shall each be in form and substance reasonably satisfactory to Buyer.
6.2.6 On , including (i) a bill of sale, assignment and general conveyance, dated the Closing D▇▇▇, with respect to the Assets, and (ii) assignment of all Contracts, Intellectual Property, and any other agreements and instruments constituting Assets, dated the Closing Date, assigning all of Seller's right, title and interest therein and thereto.
7.2.8 Seller Parent shall have delivered to Buyer all certificates of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, its managers and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closingofficers, in form and substance reasonably satisfactory to Buyer, dated the Closing Date, certifying that (i) no claims have been brought or, to such individual's knowledge, threatened against such individual which would or may give rise to a right to indemnification from Seller, and (ii) such individual has no claim against Seller (other than for any accrued and unpaid wages).
7.2.9 Buyer shall have completed to its sole satisfaction its business, financial and legal due diligence investigation of Seller, the Business and the Assets, and shall have found, in Buyer's sole discretion, Seller's prospects, Business, operations, Assets, Contracts, rights and liabilities, including its liabilities with respect to, and compliance with, Environmental Laws and legal and regulatory requirements, satisfactory. Without limiting the generality of the foregoing, Buyer shall have received true, complete and correct copies of each Contract of Seller or other document of Seller and shall have reviewed and be satisfied with the same.
Appears in 1 contract
Sources: Asset Purchase Agreement (Fidelity National Information Solutions Inc)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate complete the transactions contemplated by this Agreement are is subject to the satisfaction (or waiver in writing by Buyer) Buyer at or prior to the Closing of each of the following additional conditions:
6.2.1 Each representation a) The representations and warranty warranties of Seller Parent contained herein (disregarding any materiality or Material Adverse Effect qualifications or dollar amount thresholds contained therein) shall be true and correct in this Agreement all respects as of the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct on and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified earlier date, in which case such representation or warranty shall have been true and correct as of such date), and (ii) to the extent that any inaccuracies in such representations and warrantiesexcept, individually or in the aggregate, have as any breach of any representation or warranty has not had, had and would not reasonably be expected to have, have a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each b) Seller shall have performed all obligations and agreements, and complied in all material respects with all covenants covenants, agreements and conditions, contained in this Agreement obligations required to be performed or complied with by each of them on or prior to or on the Closing Date except to Date. As of the extent Closing Date, there shall have not occurred and be continuing any event, development or state of circumstances that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not aggregate has had or could reasonably be expected to have, result in a CRL Business Material Adverse Effect.
6.2.3 c) Buyer shall have received a certificate of Seller Parent, dated the Closing Date documents and executed by an officer of Seller Parent, other agreements and instruments pursuant to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the UpdateSection 8.4(a), and that the Update is true such other documents, agreements and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective instruments as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to it may reasonably request in connection with the consummation of the transactions contemplated hereby.
d) All consents and approvals by this Agreement and Persons to the Internal Reorganization under (or, as applicable, the taking assignment of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which Transferred Contracts set forth on Schedule 5.20 shall have been designated with an asterisk received, all on terms and conditions materially not less favorable to Seller than those in Schedule 3.4 existence as of the Disclosure ScheduleExecution Date.
e) Buyer shall have received an Updated Schedule 2.1(d), which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On f) If Seller so requests a reasonable time before the Closing Date, Seller Parent Buyer shall have delivered to Buyer all received a certificate of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing in respect of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from Seller certified by the Secretary of State or other appropriate Governmental Entity of each the State of such Person's respective jurisdiction of incorporation, organization or formation, as the case may beNevada, dated as of a reasonably recent date within thirty (30) days of prior to the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyerg) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parentthe documents and other agreements and instruments pursuant to Section 8.4(b), Recap Coand such other documents, Recap Subco agreements and instruments as it may reasonably request in connection with the Sellers, dated the date consummation of the Closing, in form and substance reasonably satisfactory to Buyertransactions contemplated hereby.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are Initial Closing is also subject to the satisfaction (of the following conditions, any one or waiver in writing more of which may be waived by Buyer: 50
(a) at Seller shall have performed in all material respects all of its material obligations and agreements hereunder required to be performed by it on or prior to the Closing of each of Initial Closing; (b) the following conditions:
6.2.1 Each representation representations and warranty warranties of Seller Parent contained in Article IV of this Agreement and any certificate delivered pursuant hereto (other than Fundamental Representations), without giving effect to materiality, Material Adverse Effect or similar qualifications, shall be true and correct on at and as of the Initial Closing Date, with Date as if made at and as of the same force and effect as though Initial Closing Date (other than such representations and warranties had been made on and that by their terms address matters only as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a another specified date, in which case such representation or warranty shall have been be true and correct only as of such date), and (ii) to except where the extent that any inaccuracies in failure of such representations and warrantieswarranties to be so true and correct would not reasonably be expected to, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 ; (c) the Fundamental Representations of Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in Article IV of this Agreement Agreement, without giving effect to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligationsmateriality, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer Effect or similar qualifications, shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is be true and correct on in all material respects at and as of the Initial Closing Date as if made on such Date, except as set forth in the Update, at and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Initial Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer Date (except for (i) de minimis inaccuracies and (ii) such representations and warranties that by their terms address matters only as of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Scheduleanother specified date, which consents, approvals and actions shall be in form true and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, correct only as of such date); (d) Seller Parent shall have delivered to Buyer all a certificate signed by an officer of Seller, dated the following:
Initial Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.02(a), Section 9.02(b) and Section 9.02(c) have been fulfilled; (e) since the date of this Agreement, there has not been a Material Adverse Effect that is continuing; (f) the Conversions shall have been completed; (g) Seller shall have delivered to Buyer a written acknowledgment (which may be in the form of an email) from the landlord under the Palm Desert Lease, which acknowledges (i) stock certificates representing the Purchased Shares. Each such certificate evidencing extension of the Purchased Shares shall be duly endorsed in blankcurrent term of the Palm Desert Lease through November 30, or be accompanied by stock transfer powers duly executed in blank2023, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating that such extended term is subject to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.Palm Desert Lease (as currently amended); and
Appears in 1 contract
Sources: Asset and Equity Purchase Agreement
Conditions to Obligations of Buyer. The obligations of Buyer to consummate effect the transactions contemplated by this Agreement are shall be subject to the satisfaction (or waiver in writing by Buyer) fulfillment at or prior to the Closing of each Date of the following additional conditions, unless waived in writing by Buyer in accordance with Section 10.4 hereof:
6.2.1 Each representation (a) The Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and warranty the representations and warranties of Seller Parent the Company contained in this Agreement shall be true and correct correct, in each case when made and on and at the Closing Date as if made at such time (except, to the extent, and only to the extent, that (i) they expressly relate to the date of this Agreement or any other particular date or (ii) such representations and warranties have been amended or modified by the delivery of amendments to the Company Disclosure Schedule at least two Business Days prior to the Closing Date, with and the same force Buyer shall have received a certificate signed on behalf of the Company by its President or Chief Executive Officer, dated the Closing Date, to that effect.
(b) All permits, consents, authorizations, approvals, registrations, qualifications, designations and effect declarations set forth on Schedule 6.4 of the Company Disclosure Schedule as though a result of the last sentence of Section 6.4 hereof shall have been obtained, on terms and conditions reasonably satisfactory to Buyer, and, to the extent required to be submitted prior to the Closing Date, all filings and notices set forth on Schedule 6.4 of the Company Disclosure Schedule as a result of the last sentence of Section 6.4 hereof shall have been submitted by the Company.
(c) Buyer shall have received the opinion of Joe ▇▇▇▇▇▇▇▇, ▇▇neral Counsel of the Company, substantially in the form of Exhibit D-1 attached hereto, and Buyer shall have received the opinion of Hayn▇▇ ▇▇▇ Boon▇, ▇▇P, counsel to the Company, dated the Closing Date, substantially in the form of Exhibit D-2 hereto.
(d) None of the Specified Parties subject to the Employment Agreements shall have breached or anticipatorily breached any such agreements.
(e) The Mill▇▇ ▇▇▇loyment Agreement Amendment shall have been executed and delivered by each of the Company and Mill▇▇, ▇▇d the Employment Agreement between the Company and Mill▇▇ ▇▇▇ll not have been otherwise amended.
(f) The Stockholders Agreement shall have been terminated by all of the parties thereto without the payment of consideration, or any commitment or agreement to pay any consideration, by the Company or any of its Subsidiaries to any Person, except as provided in the Stockholders Allocation Agreement.
(g) All members of management of the Company shall have repaid all indebtedness owed by them to the Company set forth on Schedule 9.3(g) of the Company Disclosure Schedule.
(h) Buyer shall have reasonably determined in good faith, on or before November 24, 1997, by written notice to the Company, that, had the representations and warranties of the Company in this Agreement been made without any materiality or knowledge qualifications, Buyer would suffer or experience claims, losses, damages, liabilities, diminution in value of the business, assets or operations of the Company or its Subsidiaries or other adverse economic impact from one or more breaches of such representations and warranties had been made on and that in the aggregate would not exceed $10 million if the Merger were to be consummated; provided that, in the event that the Company has provided any amendment to the Company Disclosure Schedule as of the Closing Datecontemplated by Section 9.3(a), except (i) the date on which Buyer may make the determination provided in this subsection (h) shall be extended to November 24, 1997 (or December 1, 1997 if the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have election under Section 10.1(b) has been true and correct as of such date, made) and (ii) any such amendment or amendments to the extent Company Disclosure Schedule shall not be considered to have amended the Company Disclosure Schedule for purposes of this subsection (h). The phrase "without regard to any materiality or knowledge qualifications" shall mean that any inaccuracies in such (i) references to "material" and words of similar import shall, for purposes of this Section 9.3(h), be considered to have been deleted from the text of the representations and warrantieswarranties of the Company in this Agreement, (ii) references to exclusions or other qualifications for items that would not, individually or in the aggregate, have not hador cause, and would not or which could reasonably be expected to have, a CRL Business Company Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall or phrases of similar import, shall, for such purposes, be considered to have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on been deleted from the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each text of the representations and warranties of Seller Parent contained the Company in this Agreement is true and correct on (iii) references to "to the Closing Date as if made on such Dateknowledge of the Company" and "to the knowledge of the Company's officers" and words of similar import shall, except as set forth in the Updatefor purposes of this Section 9.3(h), and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who be considered to have been requested to resign by Buyer shall have tendered their resignations effective as deleted from the text of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt representations and warranties of the consents or approvals to the consummation of the transactions contemplated by Company in this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to BuyerAgreement.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blankowner of Company Common Stock, or be accompanied by stock transfer powers duly executed in blankCompany Preferred Stock and Outstanding Options, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) JEDI, shall have executed and delivered to Buyer the Investors' Shareholder Agreement.
6.2.8 Buyer, Recap Co and Recap Subco (j) JEDI shall have received debt executed and equity proceeds in delivered to Buyer the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to BuyerJEDI Agreement.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate effect the transactions contemplated by this Agreement are subject to the satisfaction of the following conditions (which are for the exclusive benefit of Buyer, any or waiver all of which may be waived in whole or in part by Buyer):
(a) The representations and warranties of Sellers and the Company set forth in this Agreement, as qualified by the Disclosure Schedules and those Supplemental Disclosure Schedules which have been accepted in writing by Buyer) at or prior to the Closing of each of the following conditions:
6.2.1 Each representation and warranty of Seller Parent contained in this Agreement , shall be true and correct on in all material respects as of the date of this Agreement and (except to the extent such representations and warranties speak as of a specified, earlier date) as of the Closing Date, with the same force and effect Date as though such representations and warranties had been made on and as of the Closing Date, except (i) as otherwise contemplated by this Agreement, and Buyer shall have received a certificate from Sellers certifying to such effect. All representations and warranties of Sellers and the extent Company shall be deemed reaffirmed and made by each of them as of the Closing Date. Notwithstanding the foregoing, if Buyer has actual knowledge at the Closing that any such representation or warranty of Sellers or the Company is made not true and correct as of a specified datethe Closing Date, in which case and Buyer elects to Close notwithstanding such knowledge, such representation or warranty shall be deemed modified as of the Closing Date to reflect such knowledge.
(b) Sellers and the Company shall each have performed all obligations required to be performed by each such party under this Agreement at or prior to the Closing Date, and Buyer shall have received a certificate of Sellers certifying to such effect.
(c) Since the date of this Agreement, there shall have been true and correct as of such dateno change, and (ii) to the extent that any inaccuracies in such representations and warrantiesoccurrence or circumstance resulting in, or which could reasonably likely result in, individually or in the aggregate, a material adverse effect on the Company or its business.
(d) Sellers and the Company shall have not hadgiven all notices to, and would not reasonably obtained all consents, approvals or authorizations of or from, any individual, corporation or other party which may be expected necessary to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to permit the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under hereby.
(or, as applicable, the taking e) Each of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which Related Agreements shall have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer by the Investors' Agreementrespective parties thereto.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Share Purchase Agreement (Dispatch Management Services Corp)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing CTP Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent CTP contained in this Agreement Article III shall be true and correct on in all material respects as of the CTP Closing Date with the same effect as though made at and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Datedate, except (i) to the extent those representations and warranties that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all material respects as of such that specified date, (ii) representations and warranties that have qualifications as to materiality or Material Adverse Effect shall be true and correct in all respects, and (iiiii) to the extent that any inaccuracies in such representations and warrantieswarranties contained in Section 3.01, individually or Section 3.02 and Section 3.20 shall be true and correct in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effectall respects.
6.2.2 Seller Parent, Recap Subco and each Seller (b) CTP shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them it prior to or on the CTP Closing Date; provided, however, that CTP shall have complied in all respects with its obligations under Section 2.01.
(c) Buyer shall have received a certificate, dated the CTP Closing Date except to and signed by a duly authorized officer of CTP, that each of the extent that any breaches of such obligations, agreements, covenants conditions set forth in Section 6.02(a) and conditions, individually or in Section 6.02(b) have been satisfied (the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect“CTP Closing Certificate”).
6.2.3 (d) Buyer shall have received a certificate pursuant to Treasury Regulations Section 1.1445-2(b) (the “FIRPTA Certificate”) that CTP is not a foreign person within the meaning of Seller Parent, dated Section 1445 of the Closing Date and Code duly executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correctCTP.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 (e) Buyer shall have received evidence satisfactory to Buyer the documents, agreements and instruments set forth in Section 2.07(b).
(f) From and after the date of receipt of the consents or approvals this Agreement to the consummation of CTP Closing Date, there shall have not been a Material Adverse Effect.
(g) All closing conditions contained in the MTA to which Buyer’s obligations to consummate the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions thereunder are subject shall be in form and substance reasonably satisfactory to Buyersatisfied.
6.2.6 On the Closing Date, Seller Parent (h) Buyer shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such received a certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied issued by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each the State of such Person's respective jurisdiction of incorporation, organization or formation, as the case may beDelaware, dated as of a date within thirty five Business Days prior to the CTP Closing Date (30) days with a bringdown of good standing within one Business Day as of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization), as to the case may be, by-laws or other organizational documents good standing of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller ParentCTP in such state.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent the Company contained in this Agreement Article III, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect or words of similar import, shall be true and correct on and in all respects as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all respects as of such that specified date), and (ii) to except where the extent that any inaccuracies in failure of such representations and warrantieswarranties to be true and correct would not, individually or in the aggregate, have not had, and would not or reasonably be expected to have, have a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller (b) the Company shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them it prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectDate.
6.2.3 (c) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of the Company, that each of the conditions set forth in (a) and (b) have been satisfied.
(d) Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by Secretary or an officer of Seller Parent, to the effect that each Assistant Secretary (or equivalent officer) of the representations Company certifying (i) that attached thereto are true and warranties complete copies of Seller Parent contained in all resolutions adopted by the Company Board authorizing the execution, delivery and performance of this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (orset forth herein, as applicableincluding, the taking but not limited to, election of the indicated action Buyer Nominees, and that all such resolutions are in connection with full force and effect and are all the
(e) The Company shall have delivered, or caused to be delivered, to Buyer stock certificates evidencing the transactions contemplated by this Agreement Shares, free and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 clear of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to BuyerEncumbrances.
6.2.6 On the Closing Date, Seller Parent (f) The Company shall have delivered to Buyer an executed Registration Rights Agreement, substantially in the form attached hereto as Exhibit A.
(g) The Company shall have taken such actions so that the Buyer Nominees shall have been appointed to the Post-Closing Board, all in accordance with the organizational documents of the following:Company and in compliance with all applicable Laws, including the Securities Act and the Exchange Act.
(h) Buyer shall have received from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.C., counsel to the Company, an opinion dated as of the Closing Date substantially in the form attached hereto as Exhibit D.
(i) stock certificates representing The Company Board shall have adopted the Purchased Shares. Each such certificate evidencing Amendment to Bylaws of the Purchased Shares shall Company substantially in the form attached hereto as Exhibit E to be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;effective at Closing (the “Bylaw Amendment”).
(iij) The issued shares of Common Stock remaining listed for trading on the NYSE MKT at all stock certificates, minute books, stock books, ledgers times from the date of this Agreement and registers, corporate seals and other corporate records relating up to the organization, ownership and maintenance date of Recap Subco and each Recap Subsidiary which are not located at Recap Subco fulfillment or any Recap Subsidiary in Wilmington, Massachusetts or at waiver (the principal place of business of Recap Subco or any Recap Subsidiary;
(iii“Fulfillment Date”) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States last in time to be fulfilled of America the Closing Conditions in this Article VI (other than this condition), save for:
A. any suspension or other appropriate certificates in those jurisdictions that do suspensions not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) exceeding 15 trading days of the Closing DateNYSE MKT in aggregate in the preceding 12 months for whatever cause; or
B. any suspension in connection with the clearance of any public announcements or circulars in connection with this Agreement or the transactions contemplated hereunder; and
(v) a true and correct copy C. no written notification being received on or before the Fulfilment Date from NYSE MKT to the effect that the trading of the certificate Common Stock will or may be withdrawn or objected to as a result of incorporation Closing or articles in connection with the terms of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' this Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Stock Issuance and Purchase Agreement (Uqm Technologies Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate complete the transactions contemplated by this Agreement provided for herein are subject to the satisfaction (or waiver in writing by Buyer) at or prior to before the Closing of each all of the following conditions:
6.2.1 Each representation and warranty of Seller Parent contained in this Agreement shall be true and correct on and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except (ia) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each All of the representations and warranties of Seller Parent contained in this Agreement is herein shall be true and correct in all material respects (except for those representations and warranties qualified by materiality or Material Adverse Effect, which shall be true in all respects) on and as of the Closing Date with the same effect as if made on and as of such Datedate, except for those representations and warranties which address matters only as set forth in the Update, and that the Update is of a particular date which shall be true and correct.correct in all material respects as of such date (except for those representations and warranties which address matters only as of a particular date that are qualified by materiality or Material Adverse Effect, which shall be true in all respects as of such date);
6.2.4 The Affiliates (b) All of Parentthe terms, other than covenants and conditions of this Agreement to be complied with or performed by Seller at or before the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who Closing shall have been requested to resign by duly complied with and performed in all material respects;
(c) Buyer shall have tendered their resignations effective been furnished a certificate of Seller, dated as of the Closing Date, confirming the matters set forth in subsections (a), (b) and (f) of this Section 5.1;
(d) Seller shall have delivered to Buyer the items described in Section 1.5(b)(i)(A);
(e) Seller shall have obtained the consent of the applicable counterparty to the assignment or sublease to Buyer or Buyer's designee of the Contracts, Leases and License Agreements set forth on Schedule 5.1(e).
6.2.5 Buyer (f) There shall have received evidence satisfactory not be any pending governmental action or proceeding by or before any court or governmental agency that (i) seeks to Buyer of receipt of the consents restrain, prohibit or approvals to the consummation of invalidate the transactions contemplated by this Agreement and or (ii) is reasonably likely to materially affect the Internal Reorganization under (orright of Buyer to own, as applicable, the taking use or control any of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Acquired Assets or Buyer.
6.2.6 On 's title therein after the Closing Date;
(g) From the date of this Agreement to the Closing, Seller Parent there shall have delivered been no Material Adverse Effect or any event, occurrence, development or state of circumstances or facts which would reasonably be expected to Buyer all of result in a Material Adverse Effect, whether or not covered by insurance;
(h) Any applicable waiting periods (and any extensions thereof) under the following:HSR Act and under any non-U.S. antitrust laws shall have expired or otherwise been terminated; and
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for from Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory a certificate pursuant to BuyerTreasury Regulation Section 1.1445-2(b)(2) stating that Seller is not a foreign person.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are Closing shall be subject to the satisfaction (or waiver waiver, in writing whole or in part, to the extent permitted by Buyerapplicable Law, by Buyer at its sole discretion) at or prior to the Closing of each of the following conditions:
6.2.1 (a) Each representation of the representations and warranty warranties of the Seller Parent Entities and the Shareholders contained in this Agreement Article III and Article IV shall be true and correct on in all material respects as of the date of this Agreement and as of the Closing Date, with the same force and effect Date as though such representations and warranties had been made on and as of the Closing Date, except that (i) to the extent that any such representation or warranty is made accuracy of representations and warranties that, by their terms, expressly speak as of a specified date, in which case such representation or warranty shall have been true and correct specific date other than the date of this Agreement will be determined as of such date, and (ii) the accuracy of representations and warranties that are qualified by, or subject to an exception for, materiality, Material Adverse Effect or similar qualification, shall be true and correct in all respects; provided, however, that the Seller Fundamental Representations shall be true and correct in all respects in each case as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, except to the extent that any inaccuracies in such representations and warrantieswarranties expressly speak as of a specific date other than the date of this Agreement, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effectwhich case as of such date.
6.2.2 (b) Each Seller Parent, Recap Subco Entity and each Seller Shareholder shall have duly performed or complied in all obligations and agreements, and complied material respects with all agreements and covenants and conditions, contained in required by this Agreement to be performed or complied with by it, in each of them case on or prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectDate.
6.2.3 Buyer (c) Seller shall have received delivered to Buyer a certificate of Seller Parent, dated the Closing Date and executed signed by an officer of Seller ParentSeller, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective dated as of the Closing Date, stating that the conditions set forth in Section 8.01(a) and (b) have been satisfied.
6.2.5 Buyer (d) No temporary restraining order, preliminary or permanent injunction or other judgment, order or decree issued by any Governmental Authority or other statute or Law (collectively, “Restraints”) shall have received evidence satisfactory to Buyer of receipt of the consents be in effect, threatened in writing or approvals to pending restraining or preventing the consummation of the transactions contemplated by this Agreement Agreement; provided, however, that Buyer shall not have initiated such Restraint or taken any action in support of such Restraint.
(e) Any required regulatory approvals or applicable waivers from, or notice to be made to, any Governmental Authority shall have been obtained and made.
(f) Seller shall have obtained the Internal Reorganization under Stockholder Approval.
(org) (i) Buyer shall have entered in to new contracts with the Persons set forth on Schedule 7.09(c), as applicable(ii) the Seller Entities shall have caused the contracts listed on Schedule 7.09(d) to be terminated, the taking and (iii) Seller shall have obtained written consents from each of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 additional third parties set forth on Section 4.03 of the Disclosure Schedule, which consents, approvals Schedules and actions shall be provided Buyer a copy of each such consent in a form and substance reasonably satisfactory acceptable to Buyer.
6.2.6 On the Closing Date, (h) Seller Parent shall have delivered provided Buyer with evidence reasonably acceptable to Buyer that the Seller Entities have caused all of code related to the following:contract listed in Schedule 7.09(d)(1) to be removed from any and all software included in the Purchased Assets.
(i) stock certificates representing Since the Purchased Shares. date hereof, no Material Adverse Effect shall have occurred and be continuing.
(j) Each such certificate evidencing of the Purchased Shares Employment Arrangements shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, full force and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;effect.
(iik) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt releases of all compensation obligations, including deferred compensation obligations, from each of the Principal Executives in a form reasonably acceptable to Buyer and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or shall have provided copies of such other terms and conditions satisfactory releases to Buyer.
6.2.9 Buyer (l) Seller shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory delivered all documents required to Buyerbe delivered by it pursuant to Section 3.01(b).
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent Sellers contained in this Agreement ARTICLE III and of the Target Companies in ARTICLE IV shall be true and correct on and in all respects as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all respects as of such that specified date), and (ii) to except where the extent that any inaccuracies in failure of such representations and warranties, individually or in the aggregate, have not had, warranties to be true and correct would not reasonably be expected to have, have a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller (b) Sellers shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them it prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectDate.
6.2.3 (c) Buyer shall have received a certificate of Seller Parentcertificate, dated as of the Closing Date and executed signed by an a duly authorized officer of Seller ParentSellers, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as conditions set forth in the Update, Section 7.01(a) and that the Update is true and correctSection 7.01(b) have been satisfied.
6.2.4 The Affiliates (d) a certificate from each Target Company, duly executed by an authorized officer of Parent, other than the CRL Business employees, who are directors such Target Company and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective dated as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory , certifying as to Buyer such Target Company’s (i) good standing or full force and effect, (ii) certificate of receipt formation or articles of organization, certified by the Secretary of State of the consents State of Ohio, (iii) incumbency of managers or approvals to officers and (iv) resolutions approving the consummation of the transactions contemplated by this Agreement herein.
(e) Sellers shall have duly executed and delivered the Assignments to Buyer.
(f) Sellers shall have delivered releases, termination statements or satisfactions evidencing the release of all Encumbrances (other than Permitted Encumbrances) against any Target Company or any of their respective assets or properties.
(g) Sellers shall have delivered a certificate of Seller’s non-foreign status that complies with the requirements of Section 1445 of the Internal Revenue Code of 1986, as amended (the “Code”), and the Internal Reorganization under Treasury Regulations promulgated thereunder.
(orh) Seller shall have delivered to Buyer evidence that all Indebtedness has been paid in full on Pay-Off Letters, in form satisfactory to Buyer from each holder of Indebtedness.
(i) Sellers shall have delivered resignations of all Persons serving as applicable, the taking directors (or managers) and officers of each of the indicated action Target Companies.
(j) Sellers shall have delivered to the Buyer a Non-Competition and Non-Solicitation Agreement in connection with the transactions contemplated form of Exhibit C attached hereto signed by this Agreement and each of the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk Persons listed in Schedule 3.4 7.01(j).
(k) Each Seller shall have delivered to the Buyer a Waiver and Release in the form of the Disclosure Schedule, which consents, Exhibit D attached hereto.
(l) All consents and approvals and actions shall be set forth on Schedule 7.01(l) in form and substance reasonably satisfactory to Buyer.
6.2.6 On (m) employment agreements for each of ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the Closing Date, Seller Parent shall have delivered to Buyer all of the following:“Employment Agreements”).
(in) stock certificates representing A transition services agreement in the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blankform of Exhibit E, or be accompanied by stock transfer powers duly executed and delivered by NM Staffing LTD, an Ohio limited liability company (the “Transition Services Agreement”). (o) one or more bank statements (which may be in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance form of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificatesonline screenshots) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of Target Companies’ applicable banking institutions setting forth the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller ParentCash balance.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Equity Purchase Agreement (Nuverra Environmental Solutions, Inc.)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are hereby is subject to the satisfaction (or waiver in writing of the following additional conditions:
(a) Other than approval by Buyer) applicable Governmental Bodies of the assignment of Trademarks and Copyrights (which may be obtained after, but must be filed for at or prior to, the Closing), Seller shall have obtained all of the waivers, releases, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 4.2, including without limitation, having obtained the Assigned Contract Consents.
(b) No action, suit or proceeding shall be pending or, to the Closing of each of the following conditions:
6.2.1 Each representation and warranty knowledge of Seller Parent contained in this Agreement shall be true and correct on and as of the Closing Dateor Parent, with the same force and effect as though such representations and warranties had been made on and as of the Closing Datethreatened wherein an unfavorable judgment, except order, decree, stipulation or injunction would (i) to the extent that prevent consummation of any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and or the Internal Reorganization under Ancillary Documents, (or, as applicable, the taking ii) cause any of the indicated action in connection with the transactions contemplated by this Agreement or the Ancillary Documents to be rescinded following consummation, or (iii) affect materially and adversely, in Buyer's sole reasonable judgment, the Internal Reorganization with respect to) the contractsright of Buyer to own, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 operate or control any of the Disclosure ScheduleAcquired Assets following the Closing, which consentsand no such judgment, approvals and actions order, decree, stipulation or injunction shall be in form and substance reasonably satisfactory to Buyereffect.
6.2.6 On (c) The representations and warranties of Seller set forth in Article II shall be true, correct and complete when made on the date hereof and shall be true, correct and complete as of the Closing DateTime as if made as of the Closing Time (except for representations and warranties made as of a specific date, which shall be true, correct and complete as of such date).
(d) Each of Seller and Parent shall have delivered performed or complied with its agreements and covenants required to Buyer all be performed or complied with under this Agreement and the Ancillary Documents as of or prior to the following:Closing Time.
(ie) stock certificates representing All corporate and other proceedings required to be taken on the Purchased Shares. Each such certificate evidencing part of Seller and Parent to authorize or carry out this Agreement and to convey, assign, transfer and deliver the Purchased Shares Acquired Assets shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;have been taken.
(iif) all stock certificates, minute books, stock books, ledgers Seller and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) Parent shall have executed and delivered to Buyer this Agreement and the Investors' AgreementAncillary Documents.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds (g) All actions to be taken by Seller or Parent in connection with the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date consummation of the Closingtransactions 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 reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Asset Purchase Agreement (Avenue Entertainment Group Inc /De/)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate effect the transactions purchase of the Purchased Assets and the assumption of the Assumed Liabilities and Assumed Contracts contemplated by this Agreement are shall be subject to the satisfaction (or waiver in writing by Buyer) fulfillment at or prior to the Closing of each Date of the following additional conditions:
6.2.1 Each representation (a) Seller shall have performed and warranty complied in all material respects with the covenants contained in this Agreement which are required to be performed and complied with by Seller on or prior to the Closing Date and the representations and warranties of Seller Parent contained which are set forth in this Agreement shall be true and correct on in all material respects as of the date of this Agreement (except to the extent that any such representation and warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, Date (except (i) to the extent that any such representation or warranty is made speaks as of a specified particular date, in which case such representation or warranty representations and warranties shall have been be true and correct in all respects as of such other date) as though made at and as of the Closing Date;
(b) There shall not be or exist any change, and (ii) to effect, event, circumstance, occurrence or state of facts that has a Material Adverse Effect or a Material Adverse Change in the extent that any inaccuracies in such representations and warranties, individually Purchased Assets or in the aggregatebusiness condition (financial or otherwise), have not hadresults of operations, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.cash flows or prospects of the Business;
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 (c) Buyer shall have received a certificate from the chief executive officer of Seller ParentSeller, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date., to the effect that, to the best of such chief executive officer’s knowledge, the conditions set forth in Sections 8.2(a) and 8.2(b) have been satisfied;
6.2.5 (d) the Sale Order provides that any and all of the Claims and Encumbrances (other than Permitted Liens) on the Purchased Assets shall, upon Closing, attach only to the proceeds of such Purchased Assets and not to the Purchased Assets;
(e) Seller shall provide evidence to Buyer that Buyer shall have the continued use and occupancy of the Facility Lease, at Buyer’s expense, consistent with Section 7.1(c), for at least six months after the Closing, as set forth in Section 7.1(c); and
(f) Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk to be delivered to it pursuant to Section 4.2. Any condition specified in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions this Section 8.2 may be waived by Buyer; provided that no such waiver shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to effective against Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which unless it is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to a writing executed by Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) Other than the representations and warranty warranties of Seller Parent contained in the Seller Fundamental Representations, the representations and warranties of the Company and Seller contained in this Agreement Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in which case all respects), except where the failure of such representation representations or warranty shall have been warranties to be true and correct as of such date, and (ii) to the extent that any inaccuracies in such representations and warrantieswould not, individually or in the aggregate, have not hadan ACFP Material Adverse Effect (in each case, and would not reasonably be expected without giving effect to have, a CRL Business any qualifications as to “material” or “ACFP Material Adverse Effect” contained in such representations and warranties). The representations and warranties of Seller contained in the Seller Fundamental Representations shall be, except for de minimis inaccuracies, true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
6.2.2 Seller Parent, Recap Subco (b) The Company and each Seller shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement and Transaction Documents to be performed or complied with by each of them it prior to or on the Closing Date except Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, the extent that any breaches of Company and Seller shall have performed such obligations, agreements, covenants and conditions, as so qualified, in all respects; and further, provided, that, Seller and the Company shall have complied with Section 2.03(b) in all respects.
(c) All approvals, consents and waivers that are listed on Section 7.02(c) of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(d) From the date of this Agreement, there shall not have occurred any ACFP Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, have not hadwith or without the lapse of time, and would not reasonably be expected to have, a CRL Business result in an ACFP Material Adverse Effect.
6.2.3 (e) Buyer shall have received a certificate of Seller Parentcertificate, dated the Closing Date and executed signed by an a duly authorized officer of Seller Parentand the Company, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyerthis Section 7.02 have been satisfied.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (BurgerFi International, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by in this Agreement are shall be subject to the satisfaction (or waiver in writing by Buyer) at fulfillment on or prior to the Closing Date of each of the following conditions:
6.2.1 (a) Each representation of the representations and warranty warranties of the Seller Parent Parties contained in this Agreement Article III and Article VII shall be true and correct in all material respects (other than those representations and warranties of the Seller Parties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date made and (having been deemed to have been made again on and as of the Closing Date, with Date in the same force and effect as though such representations and warranties had been made language) on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct in all material respects as of such date, and specified date or (ii) to the extent that any such inaccuracies or breaches which have been remedied in such representations and warrantiesaccordance with Section 7.3 or, individually or (iii) in the aggregate, have not had, and would had or could not reasonably be expected to have, have a CRL Business Material Adverse Effect.
6.2.2 (b) Each of the Seller Parent, Recap Subco and each Seller Parties shall have performed all obligations and agreements, and complied in all material respects with all each of the covenants and conditions, contained in agreements required by this Agreement to be performed or complied with by it on or prior to the Closing Date.
(c) Buyer shall have received certificate executed by a duly authorized officer of each Seller Party dated the Closing Date, representing and certifying that the conditions described in Section 9.2(a) and Section 9.2(b) have been satisfied.
(d) No Order shall have been entered and be in effect by any Governmental Body of competent jurisdiction, and no statute, rule, regulation or other requirement shall have been promulgated or enacted and be in effect, that on a temporary or permanent basis restrains, enjoins or invalidates the transactions contemplated herein.
(e) Buyer shall have received a reserve report from an independent third party engineering firm, acceptable to Buyer, supporting the values of the Oil and Gas Properties contained in Seller’s Records.
(f) Buyer shall have received audited financial statements of the Company as of the Effective Date prepared by an independent auditor acceptable to Buyer.
(g) Buyer shall have entered into a credit agreement with a third party lender in form and substance reasonably acceptable to Buyer and/or raised new capital in an aggregate amount at least equal to the Purchase Price.
(h) Buyer shall have received certified copies of the resolutions duly adopted by each of them prior to Seller’s and the Company’s board of managers or on other governing body, as applicable, authorizing the Closing Date except execution, delivery and performance of this Agreement and the other agreements contemplated hereby, and the consummation of all transactions contemplated hereby and thereby.
(i) The Tangible Personal Property shall have been transferred to the extent that any breaches of such obligations, agreements, covenants Company from Seller pursuant to an assignment(s) in form and conditions, individually or in the aggregate, have not had, and would not substance reasonably be expected acceptable to have, a CRL Business Material Adverse EffectBuyer.
6.2.3 (j) The Excluded Property shall have been transferred from the Company pursuant to an assignment in form and substance reasonably acceptable to Buyer.
(k) Buyer shall have received a certificate of Seller Parentnon-foreign status in form, dated date and content reasonably acceptable to Buyer, executed and delivered by the Closing Date and executed by an officer of Seller Parent, Company pursuant to the effect that each Section 1445 of the representations Code and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correctTreasury Regulations promulgated thereunder.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 (l) Buyer shall have received evidence satisfactory to Buyer a certificate of receipt existence and good standing of the consents or approvals Company from the Secretary of State of the State of Texas.
(m) Buyer shall have received the written resignation of each of the Company’s managers and officers, such resignation to be effective immediately upon the consummation of the transactions contemplated by in this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory acceptable to Buyer.
(n) Buyer shall have received evidence of a right to prior notice of and a ten day right to match all of the terms of any offer if Seller decides, within two years after the Effective Date, to sell properties known as ▇▇▇▇▇▇▇▇ Island and Cedar Point and all assets related thereto.
(o) Buyer shall have received the membership interest certificate(s) representing 100% of the issued and outstanding membership interest of Company duly endorsed over to the Buyer.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Strategic American Oil Corp)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ▇▇▇▇▇'s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation 7.1.1. The representations and warranty warranties of Seller Parent Sellers contained in this Agreement ARTICLE IV shall be true and correct on and in all respects as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all respects as of such that specified date), and (ii) to except where the extent that any inaccuracies in failure of such representations and warranties, individually or in the aggregate, have not had, warranties to be true and correct would not reasonably be expected to have, have a CRL Business Material Adverse Effect.
6.2.2 Seller Parent7.1.2. Sellers shall have duly performed and complied in all material respects with all agreements, Recap Subco covenants and conditions required by this Agreement and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement of the other Transaction Documents to be performed or complied with by each of them them, respectively, prior to or on the Closing Date except Date.
7.1.3. Sellers shall have delivered to Buyer duly executed counterparts to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectTransaction Documents.
6.2.3 7.1.4. Sellers shall have delivered to Landlord the Lease Termination Payoff Amount.
7.1.5. Buyer shall have received a certificate, dated the Closing Date and signed by duly authorized officers of Sellers, that each of the conditions set forth in Section 7.1 (i) and (ii) have been satisfied.
7.1.6. Buyer shall have received a certificate signed by duly authorized officers of Seller ParentSellers certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Sellers authorizing the execution, dated the Closing Date delivery and executed by an officer performance of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries other Transaction Documents and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement hereby and thereby, and that all such resolutions are in full force and effect and are all the Internal Reorganization under (or, as applicable, the taking of the indicated action resolutions adopted in connection with the transactions contemplated hereby and thereby.
7.1.7. There shall not be in effect any Governmental Order by this Agreement and a Governmental Authority of competent jurisdiction restraining, enjoining, declaring unlawful or otherwise prohibiting the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 consummation of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyertransactions contemplated hereby.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hydrofarm Holdings Group, Inc.)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are Transaction is subject to the satisfaction (or waiver in writing by Buyer) at or prior to in writing as of the Closing of each of the following conditions:
6.2.1 Each representation (a) All of Cinemark's representations and warranty of Seller Parent contained warranties made in this Agreement shall be true (including the Schedules attached hereto, and correct on and as of without giving effect to any disclosures made by Cinemark after the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except (idate hereof) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of the date hereof and shall be true and correct in all respects (determined without regard to any materiality or Cinemark Material Adverse Effect qualifier therein) as of the Closing Date as though made as of such date, and (ii) to the extent that any inaccuracies in except for such breaches of representations and warrantieswarranties (determined as aforesaid) (other than the representations and warranties contained in Section 4.2) that, either individually or in the aggregate, have not had, and or would not reasonably be expected to have, have a CRL Business Cinemark Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all (b) The covenants and conditions, contained in this Agreement agreements of Cinemark to be performed on or complied with prior to the Effective Time shall have been duly performed in all material respects (except for any covenants and agreements that are qualified by each a standard of them materiality, which covenants and agreements shall have been duly performed in all respects).
(c) No event which has had or would reasonably be expected to have a Cinemark Material Adverse Effect shall have occurred since the date of this Agreement.
(d) No court or Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Order, and no action or proceeding shall have been instituted or threatened prior to or on the Closing Date except before any Governmental Entity pertaining to the extent that any breaches Transaction, in each case, the result of such obligations, agreements, covenants and conditions, individually which could prevent or in make illegal the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effectconsummation of the Transaction.
6.2.3 (e) Cinemark shall have procured and delivered to Buyer all Consents by third parties required to be disclosed by Section 4.1, including written Consents of each of the Leases for which Consent is required under its terms, on terms and conditions reasonably satisfactory to Buyer.
(f) Cinemark shall have furnished Buyer with an opinion of Akin Gump Strauss Hauer & Feld LLP, counsel to Cinemark (which opinion ▇▇▇▇▇ ▇t▇▇▇ ▇hat ▇▇▇ agent and the lenders (including any initial purchasers) with respect to the Financing may rely on such opinion for purposes of providing or arranging for such debt financing), opining on the matters set forth on Exhibit 7.2(f) attached hereto, in form and substance reasonably acceptable to Buyer's counsel. Buyer shall have received a certificate an opinion of Seller Parentspecial Delaware counsel, dated the Closing Date in form and executed by an officer of Seller Parentsubstance reasonably acceptable to Buyer's counsel, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct opining on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under following matters: (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect toi) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which all Delaware consents, approvals and actions filings have been made or obtained; and (ii) upon filing of the Certificate of Merger with the State of Delaware, the Merger will be effective.
(g) Each of the agreements set forth on Exhibit 7.2(g) attached hereto shall be have been terminated after giving effect to the Closing, and evidence of such shall have been delivered to Buyer, in form and substance reasonably satisfactory to Buyer.
6.2.6 On (h) The Stockholders Agreement, dated the Closing Datedate hereof, Seller Parent by and among Cinemark, the Continuing Stockholders and the other signatories thereto shall have delivered to Buyer all be in full force and effect as of the following:Closing.
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) Cinemark shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and obtained on the terms and conditions set forth in the Commitment Letters or such other terms and conditions reasonably satisfactory to BuyerBuyer sufficient funds to consummate the Transaction (the "FINANCING").
6.2.9 (j) There shall have been no payments (including accelerated vesting of stock or options) that Cinemark or any of its Subsidiaries, Buyer or any of their Affiliates has made or is or may be required to make as a result of the Transaction that was, is, or will be an "excess parachute payment" within the meaning of Code Section 280G.
(k) Each of the Employment Agreements, dated the date hereof, between Cinemark and each of Lee Roy Mitchell, Tandy Mitchell, Alan Stock, Robert Copple, ▇▇▇o▇▇▇ ▇▇▇▇▇▇, Mi▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇un▇▇▇ ▇▇▇▇▇ ▇▇ ▇n ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇ff▇▇▇ ▇▇ ▇▇ ▇▇▇ Closing.
(l) Buyer shall have received an opinion copies of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closingwritten acknowledgements, in form and substance reasonably satisfactory to BuyerBuyer (collectively, the "EXPENSE ACKNOWLEDGEMENTS"), from each of the payees of the Expenses of Cinemark and its Subsidiaries (other than (i) the fees and expenses of their investment bankers or lenders to the extent that such fees or expenses are incurred in connection with the Financing or the Tender Offer and (ii) the fees of the special Delaware counsel engaged to deliver the opinion referenced in Section 7.2(f)) that such payee has been paid in full for all services rendered for, or on behalf of, Cinemark and its Subsidiaries related to the Transaction, and each of such acknowledgements shall be in full force and effect as of the Closing.
(m) Cinemark shall have delivered to Buyer a certificate of an authorized officer of Cinemark in the form set forth on Exhibit 7.2(m), dated the Closing Date, stating that each of the conditions specified above in Sections 7.2(a) - (d), inclusive, Section 7.2(j), and Sections 7.2(p) - (r), inclusive, is satisfied in all respects.
(n) Each of the Non-competition, Non-solicitation and Non-disclosure Agreements, dated the date hereof, between Cinemark and each of Lee Roy Mitchell, Tandy Mitchell, Alan Stock, Robert Copple, ▇▇▇o▇▇▇ ▇▇▇▇▇▇, Mi▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ny ▇▇▇ ▇ohn Lundin shall be in full force and effect as of the Closi▇▇. ▇▇▇ ▇▇▇-competition, Non-solicitation and Non-disclosure Agreement, dated the date hereof, among Cinemark, CGI Equities Ltd., The Mitchell Special Trust, Mitchell Grandchildren's Trust for Crystal ▇▇e Roberts, Mitch▇▇▇ ▇▇▇▇dchildren's Trust for Cassi▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇children's Trust for Lacey Marie L▇▇, ▇▇▇▇▇▇▇l ▇▇▇▇▇▇▇▇ldren's Trust for Ashley An▇ ▇▇▇, ▇▇▇▇h▇▇▇ ▇▇▇▇▇▇▇▇▇dren's Trust for Skyler Kay▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ell Foundation shall be in full fo▇▇▇ ▇▇▇ ▇▇▇▇▇t as of t▇▇ ▇▇▇▇▇ng. The Non-solicitation and Non-disclosure Agreement, dated the date hereof, among Cinemark, Cypress Merchant Banking Partners L.P. and Cypress Pictures Ltd. shall be in full force and effect.
(o) Cinemark shall have delivered to Buyer a copy of the irrevocable written consent duly approving the Merger in accordance with the DGCL and Cinemark's certificate of incorporation and bylaws from the holders of not less than 91% of all of the outstanding shares of Cinemark Common Stock as of the date hereof.
(p) Aggregate Cash on Hand shall be an amount equal to not less than Seventy Million Dollars ($70,000,000), and Available Cash on Hand shall be an amount equal to not less than Twenty-Six Million Three Hundred Thousand Dollars ($26,300,000); provided that if the sale of Cinemark Theatres U.K., Ltd. has not occurred as of the Closing, Aggregate Cash on Hand shall be an amount equal to not less than Sixty-Six Million Five Hundred Thousand Dollars ($66,500,000). Cinemark shall have delivered to Buyer evidence reasonably satisfactory to Buyer of the foregoing.
(q) Neither Cinemark nor any of its Subsidiaries shall have incurred, assumed or guaranteed any Indebtedness of any kind after the date hereof. Cinemark shall have delivered to Buyer evidence reasonably satisfactory to Buyer of the foregoing.
(r) Each of the holders of the Stock Options that were granted after May 17, 2002 shall have surrendered his or her Stock Options for cancellation upon payment of the Option Consideration payable in respect thereof, and Cinemark shall have delivered to Buyer evidence reasonably satisfactory to Buyer of the foregoing.
(s) The execution and delivery of this Agreement and any other documents and instruments required to be executed and delivered by Cinemark pursuant to this Agreement, and the performance of its obligations hereunder and thereunder, shall have been duly authorized by all necessary corporate and shareholder action on the part of Cinemark, and Buyer shall have received copies of all resolutions pertaining to those authorizations, certified by the Secretary of Cinemark.
Appears in 1 contract
Sources: Merger Agreement (Cinemark Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by under this Agreement are subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each of the following conditions, but compliance with any such conditions may be waived by Buyer:
6.2.1 Each representation (a) All representations and warranty warranties of Seller Parent contained in this Agreement shall be are true and correct on in all material respects at and as of the Closing Date, with the same force and effect as though such representations and warranties had been were made on at and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectClosing.
6.2.2 (b) Seller Parent, Recap Subco and each Seller shall have has performed all obligations and agreements, and complied in all material respects with all the covenants and conditions, contained in agreements required by this Agreement to be performed or complied with by each of them at or prior to or on the Closing Date except to Closing.
(c) Between the extent that date of this Agreement and the Closing, there has not occurred any breaches of such obligations, agreements, covenants and conditions, individually or material adverse change in the aggregatecondition (financial or otherwise), have not hadresults of operations, and would not reasonably be expected to havebusiness, a CRL Business Material Adverse EffectSite traffic, prospects, assets or Liabilities of the Business.
6.2.3 (d) Seller has delivered to Buyer shall have received a certificate of Seller Parentclosing certificate, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth substantially in the Update, and that the Update is true and correctform of Exhibit B hereto.
6.2.4 The Affiliates of Parent(e) Seller has entered into an agreement with Microsoft, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence on terms satisfactory to Buyer of receipt and assignable to Buyer hereunder, pursuant to which (i) Microsoft will acquire ownership of the Disputed Names in return for an agreement to promote the Site on certain of Microsoft's Internet sites, and (ii) Buyer will be entitled to use the Names "wind▇▇▇▇▇.▇▇▇" ▇▇d "wind▇▇▇▇▇.▇▇▇" ▇▇ connection with the Business for a specified period of time.
(f) Buyer has received all contractual and governmental consents or and approvals to necessary in connection with the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyerdescribed herein.
6.2.6 On the Closing Date, (g) Seller Parent shall have has delivered to Buyer all executed UCC-3 termination statements or other releases satisfactory to Buyer to evidence the release of any Liens on the following:Included Assets other than statutory Liens securing current taxes and other obligations that are not yet delinquent, to the extent such Liens could arise after the Closing.
(ih) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and has delivered to Buyer the Investors' Agreement.
6.2.8 Buyera legal opinion of Seller's counsel, Recap Co and Recap Subco shall have received debt and equity proceeds substantially in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyerform of Exhibit C hereto.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Purchase Agreement (Cnet Inc /De)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate carry out the transactions contemplated by this Agreement are subject subject, at the option of Buyer, to the satisfaction (satisfaction, or waiver in writing by Buyer) at or prior to the Closing of each , of the following conditions:
6.2.1 Each representation (a) All representations and warranty warranties of Seller Parent the Company and the Shareholders contained in this Agreement shall be true and correct on in all material respects at and as of the Closing, and the Company and the Shareholders shall have performed and satisfied in all material respects all agreements and covenants required by this Agreement to be performed and satisfied by them at or prior to the Closing.
(b) As of the Closing Date, with no suit, action or other proceeding (excluding any such matter initiated by or on behalf of Buyer) shall be pending or threatened before any court or governmental agency seeking to restrain Buyer or prohibit the same force and effect Closing or seeking Damages against Buyer or the Company or its Properties as though such representations and warranties had been made on and as a result of the Closing Dateconsummation of this Agreement.
(c) Except for matters disclosed in Schedule 3.9(a) or Schedule 3.9(b) attached hereto, except (i) since the Balance Sheet Date and up to and including the extent that any such representation or warranty is made as of a specified dateClosing, in which case such representation or warranty there shall not have been true and correct as of such dateany event, and (ii) to the extent that any inaccuracies in such representations and warrantiescircumstance, change or effect that, individually or in the aggregate, had or might have not hada material adverse effect on the Company’s business, and would not reasonably be expected to haveoperations, a CRL Business Material Adverse Effectprospects, Properties or financial condition.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 (d) Buyer shall have received a certificate the opinion of Seller ParentCompany Counsel, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals , addressed to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be Buyer in form and substance reasonably satisfactory to Buyer. In rendering such opinion, Company Counsel may rely as to factual matters on certificates of officers and directors of the Company and the Shareholders and on certificates of governmental officials.
6.2.6 On the Closing Date, Seller Parent (e) The Company shall have furnished Buyer with a certified copy of all necessary corporate action on its behalf approving the Company’s execution, delivery and performance of this Agreement.
(f) All agreements, commitments and understandings between the Company and any of the Shareholders (or any other Affiliate of the Company or any such Shareholder) shall have been terminated in all respects on terms satisfactory to Buyer, and all obligations, claims or entitlements thereunder shall be unconditionally waived and released by the Shareholders and such Affiliates and written evidence thereof satisfactory in form and substance to Buyer shall have been delivered to Buyer.
(g) All proceedings to be taken by the Company in connection with the transactions contemplated hereby and all documents incident thereto shall be satisfactory in form and substance to Buyer and its counsel, and Buyer and said counsel shall have received all such counterpart originals or certified or other copies of such documents as it or they may reasonably request.
(h) Buyer shall have received written evidence, in form and substance satisfactory to Buyer, of: (i) the following:consents and novations identified in Schedule 3.13 hereto; and (ii) the consent to the transactions contemplated by this Agreement of all governmental, quasi- governmental and private third parties (including, without limitation, persons or other entities leasing real or personal property to the Company) where the absence of any such consent would result in a violation of law or a breach or default under any agreement to which the Company is subject.
(i) No proceeding in which any of the Shareholders or the Company shall be a debtor, defendant or party seeking an order for its own relief or reorganization shall have been brought or be pending by or against such person under any United States or state bankruptcy or insolvency law.
(j) Buyer shall have received from the Shareholders the stock certificates representing all of the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed Company Common Stock or affidavits of lost certificates in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;accordance with Section 1.10(a).
(iik) all stock certificatesH▇▇▇▇ shall have executed and delivered to Buyer, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;H▇▇▇▇ Employment Agreement.
(iiil) original or copies of consentsMegless shall have executed and delivered to Buyer, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;the Megless Employment Agreement.
(ivm) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) The Shareholders shall have executed and delivered to Buyer the Investors' Registration Rights Agreement.
6.2.8 Buyer(n) Buyer shall be satisfied that it will be able to obtain, Recap Co not later than sixty (60) days after the Closing Date, all audited historical and Recap Subco unaudited pro forma Financial Statements with respect to the Company, if any, together with any required consent of the Company’s independent public accountants, that may be required to be included in a Current Report on Form 8-K.
(o) No Shareholder shall have received debt and equity proceeds in exercised dissenter or appraisal rights with respect to the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to BuyerMerger.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Merger Agreement (Spectrum Sciences & Software Holdings Corp)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) satisfaction, at or prior to the Closing Closing, of each of the following conditions:conditions (any or all of which may be waived, in whole or in part, by Buyer, which waiver shall be at Buyer's sole discretion):
6.2.1 Each representation (a) (i) The representations and warranty warranties of Seller Parent Company and the Shareholders contained in this Agreement ARTICLE II and ARTICLE III, respectively (but except for the Surviving Company Reps and the Surviving Shareholder Reps), shall be true and correct on in all respects as of the date hereof and as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all respects as of that specified date), except where the failure of such date, representations and warranties to be true and correct would not have a Material Adverse Effect; and (ii) the Surviving Company Reps and the Surviving Shareholder Reps shall be true and correct in all respects as of the date hereof and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, which shall be true and correct in all respects as of that specified date).
(b) The Company shall have received all consents, authorizations, orders and approvals from the Governmental Authorities or any other Person referred to in Section 2.04 of the Disclosure Schedules (except with respect to the extent that any inaccuracies Material Contracts set forth in such representations Section 5.01(l) of the Disclosure Schedules), in form and warranties, individually or in the aggregate, have not hadsubstance reasonably satisfactory to Buyer, and would not reasonably be expected to haveno such consent, a CRL Business Material Adverse Effectauthorization, order and approval shall have been revoked.
6.2.2 Seller Parent, Recap Subco (c) The Company and each Seller the Shareholders shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them it prior to or on the Closing Date except Date.
(d) The Company shall have delivered, or caused to be delivered, to Buyer (or in the case of the items described below in clause (i)-(iv), inclusive, to the Escrow Agent with a concurrent copy to Buyer):
(i) Certificates representing all of the Shares, duly endorsed in blank where necessary by each of the Shareholders (or, to the extent that any breaches the Shares are uncertificated, valid assignments in writing relating to the Shares signed by each of such obligations, agreements, covenants the Shareholders);
(ii) a valid board resolution of the directors of the Company approving the transfers of the Shares as contemplated under this Agreement and conditions, individually or to record the Buyer as owner of all Shares in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.share ledger of the Company;
6.2.3 Buyer shall have received (iii) a certificate dated as of Seller Parent, dated the Closing Date and executed signed by an a duly authorized officer of Seller Parentthe Company, to the effect certifying that each of the representations and warranties of Seller Parent the Company contained in this Agreement is ARTICLE II are true and correct on in all respects as of the Closing Date with the same effect as if though made on at and as of such Date, except date;
(iv) a certificate dated as set forth in of the Update, and Closing Date signed by each Shareholder certifying that the Update is representations and warranties of such Shareholder contained in ARTICLE III are true and correct.correct in all respects as of the Closing Date with the same effect as though made at and as of such date;
6.2.4 The Affiliates of Parent, other than (v) each Employment Agreement duly executed by the CRL Business employees, who are directors and officers of Recap Subco Key Shareholder party thereto and the Recap Subsidiaries Company;
(vi) the Escrow Agreement, duly executed by the Shareholders’ Representatives and who have been requested to resign by Buyer shall have tendered their resignations effective the Escrow Agent;
(vii) letters of resignation, with effect as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt , duly executed by each of the consents officers and directors of the Company listed in Exhibit B-1 hereto and in the form attached hereto as Exhibit B-2, declaring their resignation as of the Closing Date as officers or approvals directors of the Company;
(viii) a certificate of the Company’s duly authorized officer, in the form attached hereto as Exhibit C, certifying (A) the incumbent officers of the Company and (B) the resolutions duly adopted by Company’s governing body (a copy of which shall be attached to such certificate), authorizing the execution, delivery and performance by the Company of this Agreement and the Transaction Documents and the consummation by the Company of the transactions contemplated hereby and thereby;
(ix) a duly executed legal opinion of Company’s Swiss counsel, CBWM & Associes, in the form attached hereto as Exhibit D;
(x) copies of the Organizational Documents of the Company, recently certified (as applicable);
(xi) a closing certificate, dated as of the Closing Date in the form attached hereto as Exhibit E, signed by this Agreement a duly authorized executive officer of the Company certifying as to the full satisfaction of each of the conditions set forth in Section 6.01 and 6.02 required to be made or performed by the Company; and
(xii) The Company's share ledger, evidencing Buyer's ownership of the Shares; and
(xiii) The 2019 Audited Financial Statements and the Internal Reorganization under (orQ1 2020 Audited Financial Statements, as applicablewhich shall be in the form of, and contain no material deviations from, the taking Provisional 2019 Financial Statements delivered to Buyer on or about May 14, 2020 and the April 30, 2020 Provisional Profit and Loss and Trial Balance Sheet delivered to Buyer on or about June 1, 2020.
(e) Each of the indicated action Founders shall have executed and delivered to Buyer an indemnity letter in the form agreed to by Buyer and the Company on February 27, 2020.
(f) Each of the Founders shall have executed and delivered to Buyer an additional indemnity letter, in a form and substance reasonably acceptable to Buyer and the Company, pertaining to any Claims that may be made by [*****] or any Affiliate thereof ("[*****]"), in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect toAgreement.
(g) the contracts, agreements, leases, other instruments, licenses and other items which There shall have been designated with an asterisk no Material Adverse Effect.
(h) Escrow Agent shall have confirmed to Buyer in Schedule 3.4 writing that Escrow Agent has received duly executed copies of each of the Disclosure Schedule, which consents, approvals and actions shall be deliverables described above in form and substance reasonably satisfactory to BuyerSection 6.02(d) (i)-(iv).
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares There shall be duly endorsed in blank, have been no outstanding Claim or be accompanied threatened or existing Proceeding by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating [*****] pertaining to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct transactions contemplated by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' this Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are Closing shall be subject to the satisfaction (or waiver waiver, in writing whole or in part, to the extent permitted by Buyerapplicable Law, by Buyer at its sole discretion) at or prior to the Closing of each of the following conditions:
6.2.1 (a) Each representation of the representations and warranty warranties of Seller Parent the Company and the Sellers contained in this Agreement Article III and Article IV shall be true and correct on in all material respects as of the date of this Agreement and as of the Closing Date, with the same force and effect Date as though such representations and warranties had been made on and as of the Closing Date, except that (i) to the extent that any such representation or warranty is made accuracy of representations and warranties that, by their terms, expressly speak as of a specified date, in which case such representation or warranty shall have been true and correct specific date other than the date of this Agreement will be determined as of such date, and (ii) the accuracy of representations and warranties that are qualified by, or subject to an exception for, materiality, Material Adverse Effect or similar qualification, shall be true and correct in all respects; provided, however, that the Company Fundamental Representations shall be true and correct in all respects in each case as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, except to the extent that any inaccuracies in such representations and warrantieswarranties expressly speak as of a specific date other than the date of this Agreement, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effectwhich case as of such date.
6.2.2 Seller Parent, Recap Subco (b) Each of the Company and each Seller shall have duly performed or complied in all obligations and agreements, and complied material respects with all agreements and covenants and conditions, contained in required by this Agreement to be performed or complied with by it, in each of them case on or prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer (c) No temporary restraining order, preliminary or permanent injunction or other judgment, order or decree issued by any Governmental Entity or other statute or Law (collectively, “Restraints”) shall have received evidence satisfactory to Buyer of receipt of the consents be in effect, threatened in writing or approvals to pending restraining or preventing the consummation of the transactions contemplated by this Agreement or the other Transaction Documents; provided, however, that Buyer shall not have initiated such Restraint or taken any action in support of such Restraint.
(d) Any required approvals or applicable waivers from, or notice to be made to, any Governmental Entity shall have been obtained and made.
(e) Since the date hereof, no Material Adverse Effect shall have occurred and be continuing.
(f) The Company and Sellers shall have taken all action necessary to cause each Option to become an interest in HoldCo or terminated as of the Closing Date in each case in accordance with the terms of the Option Plan and the Internal Reorganization under (or, as applicable, applicable option agreement between the taking of the indicated action in connection with the transactions contemplated by this Agreement Company and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyereach Option Holder.
6.2.6 On the Closing Date, Seller Parent (g) The Company and Sellers shall have delivered the Payoff Letters in accordance with Section 6.11.
(h) The Sellers and the Company shall have taken all action necessary to Buyer all of effect the following:Restructuring pursuant to Section 6.12.
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, The Company and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) Sellers shall have executed and delivered all documents required to Buyer the Investors' Agreementbe delivered pursuant to Section 2.5(a).
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (or waiver in writing by Buyer) at fulfillment on or prior to the Closing Date of each of the following conditions:
6.2.1 (a) Each representation of the representations and warranty warranties of Seller Parent contained in this Agreement Article III shall be true and correct as of the date made and (having been deemed to have been made again on and as of the Closing Date, with Date in the same force and effect language) as though such representations and warranties had been of the Closing Date as if made on and as of the Closing Datesuch date, except (i) as affected by transactions contemplated or permitted by this Agreement and (ii) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such specified date.
(b) Each of the representations and warranties of the Company and the Subsidiary contained in Article IV shall be true and correct as of the date made and (having been deemed to have been made again on and as of the Closing Date in the same language) as of the Closing Date as if made on and as of such date, and except (i) as affected by transactions contemplated or permitted by this Agreement, (ii) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct in all material respects as of such specified date, (iii) to the extent that an adjustment to the Purchase Price has been made in respect of any inaccuracies or breaches in accordance with Section 9.4, and (iv) any such representations and warrantiesinaccuracies or breaches which, individually or in the aggregate, have not had, and would had or could not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent(c) Seller, Recap Subco the Company, and each Seller the Subsidiary shall have performed all obligations and agreements, and complied with in all material respects all covenants and conditions, contained in agreements required by this Agreement to be performed or complied with by each of them on or prior to the Closing Date.
(d) Buyer shall have received a certificate executed by a duly authorized officer of the Company and the Subsidiary dated the Closing Date, representing and certifying that the conditions described in Sections 10.2 (b) and (c) have been satisfied.
(e) No Proceeding (excluding any Proceeding initiated by Buyer or any of its affiliates) shall, on the Closing Date Date, be pending or threatened seeking to restrain, prohibit, or obtain damages or other relief in connection with this Agreement, the effectiveness or enforceability of any Contract or Oil and Gas Contract (other than the Gas Gathering Agreement), or the consummation of the transactions contemplated hereby, except to the extent that any breaches of for such obligationsProceedings which, agreements, covenants and conditions, individually or in the aggregate, have not had, and would had or could not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 (f) Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock otherwise in form acceptable to Buyer for transfer taxes affixed thereto and canceled;on the books of the Company.
(iig) all stock certificatesNo order, minute bookswrit, stock books, ledgers injunction or decree shall have been entered and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco be in effect by any court or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporationcompetent jurisdiction, organization and no statute, rule, regulation or formationother requirement shall have been promulgated or enacted and be in effect, as that on a temporary or permanent basis restrains, enjoins or invalidates the case may be, dated as of a date within thirty (30) days of the Closing Date; andtransactions contemplated hereby.
(vh) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized The lender(s) under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) Credit Facility shall have executed and delivered releases of all Liens in collateral securing the Credit Facility against payment of the amounts due and owing under the Credit Facility.
(i) The Company shall have settled all Existing ▇▇▇▇▇▇ and shall have provided evidence satisfactory to Buyer the Investors' Agreementthat all Existing ▇▇▇▇▇▇ have been satisfied and terminated.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ▇▇▇▇▇'s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation : The representations and warranty warranties of Seller Parent contained in this Agreement 18ARTICLE IV shall be true and correct on and in all respects as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all respects as of such that specified date), and (ii) to except where the extent that any inaccuracies in failure of such representations and warranties, individually or in the aggregate, have not had, warranties to be true and correct would not reasonably be expected to have, have a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each . Seller shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by each of them it prior to or on the Closing Date except Date. Seller shall have delivered to Buyer duly executed counterparts to the extent Transaction Documents (other than this Agreement) and such other documents and deliveries set forth in (a). Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that any breaches each of such obligations, agreements, covenants the conditions set forth in (a) and conditions, individually or in (b) have been satisfied (the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 "Seller Closing Certificate"). Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by Secretary or an officer Assistant Secretary (or equivalent officer) of Seller Parent, to certifying that attached thereto are true and complete copies of all resolutions adopted by the effect that each board of the representations and warranties directors of Seller Parent contained in authorizing the execution, delivery and performance of this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries other Transaction Documents and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement hereby and thereby, and that all such resolutions are in full force and effect and are all the Internal Reorganization under (or, as applicable, the taking of the indicated action resolutions adopted in connection with the transactions contemplated by this Agreement hereby and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Sharesthereby. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received a certificate of the Secretary or an opinion Assistant Secretary (or equivalent officer) of counsel for Seller Parentcertifying the names and signatures of the officers of Seller authorized to sign this Agreement, Recap Co, Recap Subco the Transaction Documents and the Sellers, dated other documents to be delivered hereunder and thereunder. Buyer shall have received a certificate pursuant to Treasury Regulations Section 1.1445-2(b) (the date "FIRPTA Certificate") that Seller is not a foreign person within the meaning of Section 1445 of the Closing, in form and substance reasonably satisfactory to BuyerCode duly executed by Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are is subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent contained herein (in this Agreement each case without giving effect to any materiality concept therein) shall be true and correct on as of the Closing, disregarding for these purposes any breaches or inaccuracies that do not, and are not reasonably likely to, have in the aggregate a Company Material Adverse Effect.
(b) Seller shall have performed in all material respects the covenants and agreements required to be performed by it hereunder prior to the Closing Date.
(c) Buyer shall have received a certificate from an appropriate officer of Seller, dated at and as of the Closing Date, with in form and substance reasonably satisfactory to Buyer, certifying that the same force conditions specified in clauses (a) and effect as though such representations and warranties had (b) above have been made on and as fulfilled.
(d) Each of the Closing Date, except (i) Transaction Documents to the extent that which Seller or any such representation or warranty of its Affiliates is made as of a specified date, in which case such representation or warranty party shall have been true and correct fully executed by Seller and/or its Affiliates, as of such dateapplicable, and (ii) delivered to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectBuyer.
6.2.2 Seller Parent, Recap Subco and each Seller (e) The Issuance shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with been approved by each of them prior to or on Buyer’s shareholders at the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectBuyer Shareholders Meeting.
6.2.3 (f) Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, writing or some other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence manner reasonably satisfactory to Buyer of receipt of the consents or approvals to from each Rating Agency a statement indicating that the consummation of the transactions contemplated by this Agreement of itself will not result in a downgrade of Assured Guaranty Corp., Assured Guaranty (UK) Ltd. and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.Assured Guaranty Re Ltd.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate Purchase and pay for the transactions contemplated by this Agreement Assets are subject to the satisfaction (or waiver in writing by Buyer) at or prior to as of the Closing of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent contained made in this Agreement shall be true and correct in all material respects as of the date hereof and, except as specifically contemplated by this Agreement, on and as of the Closing DateClosing, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed or complied in all material respects with all obligations and agreements, and complied with all covenants and conditions, contained in required by this Agreement to be performed or complied with by each Seller by the time of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants Closing; and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer Seller shall have received a certificate of Seller Parent, delivered to Buyer certificates dated the Closing Date and executed signed by an authorized officer of the respective Seller Parent, to confirming the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correctforegoing.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer (b) Seller shall have tendered their resignations effective as executed and delivered the ▇▇▇▇ of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Sale and Assignment and Assumption Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to BuyerAncillary Agreements.
6.2.6 On the Closing Date, (c) Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer instruments of assignment of the Investors' AgreementIntellectual Property.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 (d) Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date consents from third parties identified on Schedule 8.1(d).
(e) In respect of the ClosingCompany Properties listed on Schedule 8.1(e), Buyer shall have obtained a commitment for an ALTA (1970 Form B) Owner's Policy of Title Insurance insuring fee title to the Company Property subject only to (x) Permitted Title Exceptions and (y) such other limitations and exceptions as shall not unreasonably interfere with the use of the Company Property in form and substance reasonably satisfactory to Buyerthe Ordinary Course. This condition shall be deemed satisfied unless Buyer otherwise notifies Seller within five Business Days after Buyer shall have received a current title commitment for such Company Property.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate effect the transactions contemplated by this Agreement are shall be further subject to the satisfaction (or waiver in writing by Buyer) Buyer at or prior to the Closing of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent contained made in this Agreement (including the Schedules) and the Related Documents that are qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct on and in all material respects as of the Closing Date, with the same force and effect Date as though such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified date, representations and warranties expressly relate to an earlier date (in which case such representation or warranty representations and warranties qualified as to materiality shall have been be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect).
6.2.2 Seller Parent, Recap Subco and each (b) Seller shall have performed in all material respects all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement required to be performed or complied with by each Seller under this Agreement by the time of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectClosing.
6.2.3 Buyer (c) Seller shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, delivered or caused to the effect that be delivered to Buyer each of the representations documents specified in Section 8.02.
(d) All license, sublicense, development and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth other Contracts purporting to grant any rights in the UpdateProduct or the Assets to any Person, and that including the Update is true and correct.
6.2.4 The Affiliates of ParentEsprit License Agreement, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who shall have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and terminated on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer, and Seller shall have delivered to Buyer written evidence of such terminations.
6.2.9 (e) Buyer shall have received an opinion of counsel entered into the Supply Agreement with Seller for Seller Parent, Recap Co, Recap Subco the manufacture and the Sellers, dated the date supply of the Closing, in form Product to Buyer on terms and substance reasonably conditions satisfactory to BuyerBuyer and Seller.
(f) Buyer shall have consummated the closing under the AGN Asset Purchase Agreement simultaneously with the consummation of the Closing under this Agreement.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate effect the Merger and the other transactions contemplated by this Agreement hereby are also subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each Date of the following conditions, any or all of which may be waived in writing by Buyer, in whole or in part:
6.2.1 (a) Each representation of the representations and warranty warranties of Seller Parent the Company and the Shareholder contained in this Agreement shall be true and correct on and in all material respects as of the Closing Date, with the same force and effect Date as though such representations and warranties had been made on and as of the Closing Date, Date (except (i) to the extent that any such representation or warranty is made as of a specified representations and warranties specifically relate to an earlier date, in which case such representation or warranty representations and warranties shall have been be true and correct in all material respects as of such earlier date). Buyer shall have received a certificate signed by the President of the Company, and (ii) dated the Closing Date, to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effecteffect.
6.2.2 Seller Parent, Recap Subco (b) Each of the Company and each Seller the Shareholder shall have performed or complied in all obligations and agreements, and complied material respects with all agreements and covenants and conditions, contained in required by this Agreement to be performed or complied with by each of them it on or prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Date. Buyer shall have received a certificate signed by the President of Seller Parentthe Company, dated the Closing Date and executed by an officer of Seller ParentDate, to such effect.
(c) Since the effect that each Latest Balance Sheet Date, there has not occurred any material adverse change in the condition (financial or otherwise), results of operations, business, site traffic, prospects, assets or Liabilities of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correctBusiness.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by (d) Buyer shall have tendered their resignations effective received a closing certificate signed by the President of the Company substantially in the form of Exhibit C attached hereto.
(e) No Governmental Entity or federal or state court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is in effect and which has the effect of making the Merger illegal or otherwise prohibiting consummation of the Merger (an "Order"); and no such Governmental Entity or third party shall have initiated or threatened to initiate any proceeding seeking an Order.
(f) Counsel to the Company shall have delivered to Buyer its written opinion substantially in the form of Exhibit D attached hereto.
(g) Each of the Company and the Shareholder shall have obtained each consent and approval necessary in order that the transactions contemplated hereby do not constitute a material breach or violation of, or result in a right of termination or acceleration of any encumbrance on any material portion of the Company's properties or assets, any Material Contract, material arrangement or understanding.
(h) The total Liabilities of the Company of the type that would be reflected in a balance sheet of the Company prepared as of the Closing DateDate in accordance with generally accepted accounting principles shall not exceed $175,000.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of (i) All proceedings taken by the consents or approvals to Company and all instruments executed and delivered by the consummation of the transactions contemplated by this Agreement Company and the Internal Reorganization under (orShareholder, as applicable, on or prior to the taking of the indicated action Closing Date in connection with the transactions herein contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be reasonably satisfactory in form and substance reasonably satisfactory to Buyer.
6.2.6 On (j) Buyer has completed its due diligence investigation of the Closing DateCompany, Seller Parent including legal, operational, financial and technical matters, and the results of such investigation are satisfactory to Buyer in its sole discretion.
(k) Buyer's Board of Directors has approved the execution and delivery of this Agreement, the Merger and the transactions contemplated hereby.
(l) The Shareholder shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions employment agreement described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing Section 5.10 of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' this Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Merger Agreement (Cnet Inc /De)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are subject to the satisfaction (of the following additional conditions, any one or waiver more of which may be waived in writing by Buyer:
(a) (i) each of the representations and warranties contained in Section 3.1 (Organization of Sellers), Section 3.2 (Due Authorization), Section 3.3 (Capitalization; Subsidiaries); Section 3.10 (Brokers’ Fees) and Section 3.12 (Title to Transferred Assets) (collectively, the “Fundamental Representations”) shall be true and correct in all respects as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which speak as to another date, which representations and warranties shall be true and correct in all respects at and as of such date, in each case disregarding all qualifications contained therein relating to materiality or Material Adverse Effect; and (ii) each of the other representations and warranties contained in ARTICLE III shall be true and correct in all material respects as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which speak as to another date, which representations and warranties shall be true and correct in all material respects at and as of such date, in each case disregarding all qualifications contained therein relating to materiality or Material Adverse Effect;
(b) each of the covenants of Sellers to be performed at or prior to the Closing shall have been performed in all material respects;
(c) Sellers shall have delivered to Buyer a certificate signed by an officer of each of the following conditions:
6.2.1 Each representation and warranty of Seller Parent contained in this Agreement shall be true and correct on and Seller, dated as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except certifying that (i) to the extent that any such representation or warranty is made as of a conditions specified datein Sections 7.2(a), in which case such representation or warranty shall 7.2(b) and 7.2(f), have been true and correct as of such date, fulfilled and (ii) attached thereto is a true and complete copy of resolutions duly adopted (or a duly executed written consent) by the board of directors and stockholders of such Seller authorizing the execution, delivery and performance of the documents, including this Agreement and each of the Ancillary Agreements, executed in connection with the transactions contemplated hereby;
(d) Sellers and their applicable Affiliates shall have duly executed and delivered to Buyer the extent Ancillary Agreements, including the documents referenced in Section 2.8(a); and
(e) there shall not have been any event, occurrence, development or circumstance that any inaccuracies in such representations and warrantieshas had or is reasonably likely to have, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or Effect on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectTransferred Assets.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Asset Purchase Agreement (Shift Technologies, Inc.)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are Securities Purchase and the Merger shall be subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each of the following conditions, any or all of which may be waived, in whole or in part, by Buyer:
6.2.1 Each representation (a) (i) the Fundamental Representations and warranty of Seller Parent contained Warranties (other than those in this Agreement Sections 3.8(a)-(g)) shall be true and correct on at and as of the Closing DateDate (or in the case of Fundamental Representations and Warranties (other than those in Sections 3.8(a)-(g)) that are made as of a specified date, such Fundamental Representations and Warranties shall be true and correct as of such specified date) with the same force and effect as though such representations and warranties had been made on and as of such date, the representations and warranties of the Company and the Sellers contained in this Agreement (other than the Fundamental Representations and Warranties other than those in Sections 3.8(a)-(g)) disregarding all qualifications contained herein relating to materiality or Material Adverse Effect shall be true and correct at and as of the Closing Date, except Date (i) to or in the extent case of representations and warranties that any such representation or warranty is are made as of a specified date, in which case such representation or warranty representations and warranties shall have been be true and correct as of such specified date) with the same force and effect as though made on and as of such date, and (ii) except to the extent that any inaccuracies in the failure of such representations and warrantieswarranties to be true and correct, individually or in the aggregate, have not had, and would not reasonably be expected to have, have a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants the representations and conditions, warranties contained in this Agreement in Sections 3.8(a)-(g)) disregarding all qualifications contained herein relating to materiality or Material Adverse Effect shall be true and correct at and as of the Closing Date (or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct as of such specified date) with the same force and effect as though made on and as of such date, in all material respects; and (ii) the agreements and covenants to be performed or complied with satisfied by each of them the Sellers and the Company hereunder at or prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a been duly performed or satisfied in all material respects;
(b) The Sellers and the Company shall have delivered, or caused to be delivered, to Buyer in customary form reasonably acceptable to Buyer (i) an officer’s certificate of Seller Parentthe Company, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws satisfaction of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in Section 7.2(a) (as it relates to representations, warranties, agreements and covenants of the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received Company), (ii) an opinion officer’s certificate of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers’ Representative on behalf of the Sellers, dated the date Closing Date, as to the satisfaction of the Closingconditions set forth in Section 7.2(a) (as it relates to representations, warranties, agreements and covenants of the Sellers) and (iii) evidence, in form and substance reasonably satisfactory to Buyer, of satisfaction of the covenants set forth in Sections 6.7(c) and 6.7(d);
(c) The Sellers shall have delivered to Buyer written opinions of ▇▇▇▇▇ ▇▇▇▇▇ LLP, dated as of the Closing Date, substantially in the form of Exhibit E, to the effect that (a) commencing with MIPT’s first taxable year, (i) MIPT has been organized and operated in conformity with the requirements for qualification as a REIT under the Code, and (ii) MIPT’s actual method of operation through the Closing Date has enabled it to meet, for each of its 2007 through 2012 taxable years and from January 1, 2013 through the Closing Date, the requirements for qualification and taxation as a REIT under the Code, and (b) commencing with TPP’s first taxable year, (i) TPP had been organized and operated in conformity with the requirements for qualification as a REIT under the Code until it merged with MIPT and (ii) TPP’s actual method of operation through the effective date of its merger with MIPT enabled it to meet, for each of its 2007 through 2013 taxable years, the requirements for qualification and taxation as a REIT under the Code. In rendering such opinions, ▇▇▇▇▇ ▇▇▇▇▇ LLP shall be entitled to rely upon assumptions and representations reasonably satisfactory to it, it being understood that Buyer shall have the right to reasonably comment on these assumptions and representations and include therein facts and information obtained by Buyer during its due diligence; and
(d) The Mexico Disposition shall have been consummated.
(e) The U.S. Partnership Contributions shall have been consummated.
Appears in 1 contract
Sources: Securities Purchase and Merger Agreement (American Tower Corp /Ma/)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are Closing is subject to the satisfaction (or or, to the extent legally permissible, waiver in writing by Buyer) at or prior to the Closing of each of the following further conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent contained in this Agreement shall be true and correct on as of the date of this Agreement and as of the Closing Date, with the same force and effect Date as though such representations and warranties had been if made on and as of the Closing Date, Date (except (i) to the extent that for any such representation or warranty is representations and warranties that are made only as of a specified specific date, in which case such representation or warranty shall have been be true and correct only as of such date); provided, and (ii) however, that notwithstanding anything herein to the extent that contrary, the condition set forth in this Article 14.2(a) shall be deemed to have been satisfied even if any inaccuracies representations and warranties of Seller contained in Articles 8.6 (Litigation), 8.8 (Finders’ Fees), 9.6 (Locked Box Accounts) and 9.7 (Absence of Certain Changes) are not so true and correct, unless the failure of such representations and warrantieswarranties of Seller to be so true and correct (without giving effect to any qualification by “materiality” or “material adverse effect” and words of similar import set forth therein) has had, or could reasonably be expected to have, individually or in the aggregate, have not hadan adverse effect of at least 10% of the enterprise value of the Group Companies taken as a whole, and or would not reasonably be expected to haveprevent Seller from consummating the transactions contemplated by, a CRL Business Material Adverse Effector performing the obligations under, this Agreement.
6.2.2 Seller Parent, Recap Subco and each (b) Seller shall have performed in all material respects all of its obligations and agreements, and complied with all covenants and conditions, contained in this Agreement hereunder required to be performed by it at or complied with by each of them prior to the Closing.
(c) The Registration Rights Agreement shall have been executed and delivered by the Company and there shall be no Action pending against or on threatened against its validity and enforceability.
(d) The aggregate redemption price of all Class A common stock of Buyer paid upon completion of the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or Redemption TO procedure has not exceeded USD 1 billion in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of (e) Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers a duly executed in blankcertificate, and shall be accompanied signed by all requisite documentary an authorized officer or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance director of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may beSeller, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of , certifying that the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to BuyerArticle 14.2 have been satisfied.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Share Purchase Agreement (Pershing Square Tontine Holdings, Ltd.)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are is subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each of the following conditions:
6.2.1 Each representation (a) Seller shall have obtained (or caused to be obtained) all of the waivers, permits, consents, approvals or other authorizations, and warranty effected all of the registrations, filings and notices, listed on Schedule 5.1(a) hereto;
(b) The representations and warranties of Seller Parent contained set forth in this Agreement Article II and of Parents set forth in Article IIA shall be true and correct on at and as of the Closing Date, with the same force and effect Date as though such representations and warranties had been if made on and as of the Closing Date, except (i) to the extent for changes permitted by this Agreement, (ii) for those representations and warranties that any such representation or warranty is made address matters only as of a specified date, in particular date (which case such representation or warranty shall have been be true and correct as of such date, subject to clause (iii) below), and (iiiii) to where the extent that any inaccuracies in such failure of the representations and warranties, individually or in the aggregate, have not had, warranties to be true and correct would not reasonably be expected to have, have a CRL Business Material Adverse Effect.Effect in the case of representations and warranties contained in Article II or a Parent Material Adverse Effect in the case of representations and warranties contained in Article IIA (it being agreed that this clause (iii) shall be inapplicable to any portion of a representation and warranty which already contains a Business Material Adverse Effect qualification or a Parent Material Adverse Effect qualification, as applicable);
6.2.2 Seller Parent, Recap Subco and each (c) Seller shall have performed or complied in all obligations material respects with the agreements and agreements, and complied with all covenants and conditions, contained in this Agreement required to be performed or complied with by each it under this Agreement as of them or prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.Closing;
6.2.3 Buyer (d) Seller shall have received delivered to Buyer a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties conditions specified in clauses (a) through (c) of Seller Parent contained this Section 5.1 is satisfied in this Agreement is true and correct on the Closing Date as if made on such Dateall respects;
(e) No action, except as set forth in the Updatesuit or proceeding shall be pending by or before any Governmental Entity wherein an unfavorable judgment, and that the Update is true and correct.
6.2.4 The Affiliates order, decree, stipulation or injunction would reasonably be expected to (i) prevent consummation of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation any of the transactions contemplated by this Agreement and the Internal Reorganization under or (or, as applicable, the taking ii) cause any of the indicated action in connection with the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(f) All applicable waiting periods (and any extensions thereof) under the Internal Reorganization ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or otherwise been terminated;
(g) Buyer shall have received all of the items required to be delivered to it pursuant to Sections 1.1(c) and 1.3(b);
(h) Seller and Tecomet Inc. shall have entered into a supply agreement for HTC grids and an agreement for use of HTC technology in the forms attached hereto as Exhibit H (the "Tecomet Agreements");
(i) Seller and ThermoTrex Corporation shall have entered into a letter agreement amending the License Agreement dated October 16, 1995 between Trex Medical Corporation and ThermoTrex Corporation with respect toto CMOS technology in the form attached hereto as Exhibit I (the "CMOS Letter Agreement"); and
(j) All actions to be taken by Seller in connection with the contractsconsummation of the transactions contemplated hereby and all certificates, agreementsopinions, leases, other instruments, licenses instruments and other items which have been designated with an asterisk in Schedule 3.4 of documents required to effect the Disclosure Schedule, which consents, approvals and actions transactions contemplated hereby shall be reasonably satisfactory in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Trex Medical Corp)
Conditions to Obligations of Buyer. The obligations In addition to the satisfaction or waiver, as applicable, of the conditions under Section 5.1, the obligation of Buyer to consummate the transactions contemplated by this Agreement are to be consummated at the Closing is subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each of the following conditions:
6.2.1 Each representation and warranty (a) (i) each of the Fundamental Representations of Seller Parent contained set forth in this Agreement Article II shall be true and correct on and as of the date of this Agreement and on and as of the Closing Date, Date (except with the same force and effect as though such respect to representations and warranties had been made that address matters only as of a particular date, in which case, as of such other date); and (ii) each of the representations and warranties of Seller set forth in Article II (other than the Fundamental Representations) shall be true and correct (disregarding all qualifications and exceptions as to materiality or Business Material Adverse Effect contained therein) on and as of the date of this Agreement and on and as of the Closing Date, except in the cases of the clauses (i) to the extent and (ii) (x) for those representations and warranties that any such representation or warranty is made address matters only as of a specified date, in particular date (which case such representation or warranty shall have been be true and correct as of such date, subject to clause (y) below), and (iiy) to for failures of the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, warranties to be true and correct as to matters that would not reasonably be expected to have, have a CRL Business Material Adverse Effect.;
6.2.2 Seller Parent, Recap Subco and each (b) Seller shall have performed or complied in all obligations material respects with the agreements and agreements, and complied with all covenants and conditions, contained in this Agreement required to be performed or complied with by each it under this Agreement and the Related Agreements as of them or prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.Closing;
6.2.3 Buyer (c) Seller shall have received delivered to Buyer a certificate certificate, validly executed by a duly authorized officer of Seller ParentSeller, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date., certifying that each of the conditions specified in clauses (a) and (b) of this Section 5.2 is satisfied;
6.2.5 Buyer (d) Seller shall have received evidence satisfactory delivered to Buyer of receipt each of the consents or approvals Related Agreements to which Seller is a party, validly executed by a duly authorized representative of Seller;
(e) Seller shall have delivered a certificate of non-foreign status satisfying the consummation requirements of Treasury Regulation Section 1.1445-2(b) in a form reasonably acceptable to Buyer;
(f) Seller shall have delivered to Buyer evidence of accepted binding purchase orders (i) with each of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking counterparties set forth on Section 5.2(f)(i) of the indicated action in connection with Seller Disclosure Letter and (ii) reflecting the transactions contemplated by this Agreement and the Internal Reorganization with respect toterms set forth on Section 5.2(f)(ii) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Seller Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.Letter;
6.2.6 On the Closing Date, (g) Seller Parent shall have delivered to Buyer all of other items listed in Section 1.3(b) not otherwise delivered under this Section 5.2;
(h) Seller shall have delivered to Buyer letters from Seller to the following:FDA transferring to Buyer the rights to the Transferred Registrations issued by the FDA in substantially the form attached hereto as Exhibit I (the “Seller FDA Letters”);
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(iiAll Third Party consents set forth on Section 5.2(i) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) Disclosure Letter shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closingbeen obtained, in form and substance reasonably satisfactory to Buyer; and
(j) Since the date of this Agreement, there shall not have occurred a Business Material Adverse Effect.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Merrimack Pharmaceuticals Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent Sellers contained in this Agreement Article IV shall be true and correct on and in all respects as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all respects as of such that specified date), and (ii) to except where the extent that any inaccuracies in failure of such representations and warranties, individually or in the aggregate, have not had, warranties to be true and correct would not reasonably be expected to have, have a CRL Business Material Adverse Effect.
6.2.2 Seller Parent(b) Sellers shall have duly performed and complied in all material respects with all agreements, Recap Subco covenants and conditions required by this Agreement and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement of the other Transaction Documents to be performed or complied with by each of them it prior to or on the Closing Date except Date.
(c) Sellers shall have delivered to Buyer duly executed counterparts to the extent that any breaches of Transaction Documents (other than this Agreement) and such obligations, agreements, covenants other documents and conditions, individually or deliveries set forth in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectSection 3.02(a).
6.2.3 (d) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of each Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (the “Seller Closing Certificate”).
(e) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each Seller Parentcertifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of such Seller authorizing the execution, dated the Closing Date delivery and executed by an officer performance of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries other Transaction Documents and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement hereby and thereby, and that all such resolutions are in full force and effect and are all the Internal Reorganization under (or, as applicable, the taking of the indicated action resolutions adopted in connection with the transactions contemplated by hereby and thereby.
(f) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each Seller certifying the names and signatures of the officers of such Seller authorized to sign this Agreement Agreement, the Transaction Documents and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses documents to be delivered hereunder and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyerthereunder.
6.2.6 On the Closing Date, Seller Parent (g) Sellers shall have delivered to Buyer all of (i) the following:Estimated Player Liabilities Statement, (ii) the Closing Indebtedness Certificate, and (iii) the Closing Transaction Expenses Certificate.
(h) The Financial Audit shall have been completed to Buyer’s satisfaction.
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated Since the date of the Closingthis Agreement, in form and substance reasonably satisfactory to Buyerthere shall not have occurred any Material Adverse Effect.
Appears in 1 contract
Sources: Asset Purchase Agreement (Esports Entertainment Group, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfilment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent contained in this Agreement Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in the accuracy of which case such representation or warranty shall have been true and correct be determined as of such date, and (ii) to the extent that any inaccuracies specified date in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effectall respects).
6.2.2 Seller Parent, Recap Subco and each (b) Seller shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by each of them prior to or on the Closing Date except Date; provided, that, with respect to the extent agreements, covenants and conditions that any breaches of are qualified by materiality, Seller shall have performed such obligations, agreements, covenants and conditions, individually or as so qualified, in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effectall respects.
6.2.3 (c) All required approvals, consents and waivers shall have been received and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(d) The Transaction Documents (other than this Agreement) shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Buyer.
(e) Buyer shall have received a certificate, dated the Closing Date and signed by Seller that each of the conditions set forth in Section 6.02(a) and Section 6.02(b) have been satisfied.
(f) Buyer shall have received a certificate of Seller Parentcertifying that attached thereto are true and complete copies of all resolutions adopted by the Company, dated authorizing the Closing Date execution, delivery and executed by an officer performance of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries other Transaction Documents and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement hereby and thereby, and that all such resolutions are in full force and effect and are all the Internal Reorganization under (or, as applicable, the taking of the indicated action resolutions adopted in connection with the transactions contemplated by this Agreement hereby and the Internal Reorganization with respect tothereby.
(g) the contracts, agreements, leases, other instruments, licenses and other items which Buyer shall have been designated with an asterisk in Schedule 3.4 received resignations of the Disclosure Schedule, which consents, approvals directors and actions shall be in form and substance reasonably satisfactory officers of the Company pursuant to BuyerSection 1.04(b).
6.2.6 On the Closing Date, (h) Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and a good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America certificate (or other appropriate certificates in those jurisdictions that do not issue such good standing certificatesits equivalent) for the Company from the Secretary of State of the state of California.
(i) Seller shall have delivered, or caused to be delivered, to Buyer stock certificates evidencing the Shares, free and clear of Encumbrances, duly endorsed in blank or accompanied by stock powers or other appropriate Governmental Entity instruments of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; andtransfer duly executed in blank and with all required stock transfer tax stamps affixed.
(vj) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate the Investors' transactions contemplated by this Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent Seller, the Company and GRA contained in this Agreement Article III shall be true and correct on and as of the Closing Date, with the same force and effect as though in all material respects (except for such representations and warranties had been that are qualified by their terms by a reference to materiality or Material Adverse Effect, which representations and warranties as so qualified shall be true and correct in all respects) as of the date of this Agreement and the Closing Date with the same effect as though made on at and as of the Closing Date, such date (except (i) to the extent those representations and warranties that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all respects as of such that specified date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect).
6.2.2 Seller Parent, Recap Subco and each (b) Seller shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them it prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectDate.
6.2.3 (c) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied.
(d) Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by Secretary or an officer Assistant Secretary (or equivalent officer) of Seller Parent, to and the effect Company certifying that each attached thereto are true and complete copies of all resolutions adopted by the representations and warranties Managers of Seller Parent contained in and the Company authorizing the execution, delivery and performance of this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement hereby, and that all such resolutions are in full force and effect and are all the Internal Reorganization under (or, as applicable, the taking of the indicated action resolutions adopted in connection with the transactions contemplated by hereby.
(e) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller and the Company certifying to the accuracy and completeness of (i) the articles of organization of the Company and GRA, (ii) the Company Operating Agreement and GRA Operating Agreement, (iii) the certificates of good standing (or equivalent) from the Illinois Secretary of State and each other secretary of state (or equivalent) of each jurisdiction where the Company or GRA conduct business and (iv) the names and signatures of the authorized signatories of Seller authorized to sign this Agreement and the Internal Reorganization with respect toother documents to be delivered hereunder.
(f) Seller shall have delivered, or caused to be delivered, to Buyer an assignment separate from certificate, in the form attached hereto as Exhibit B, duly executed by Seller assigning the Membership Interests to Buyer free and clear of all Encumbrances.
(g) No later than two (2) Business Days prior to the Closing, Seller shall have delivered a certificate, certified by an officer of the Company and setting forth the Company’s good faith estimate of each of the following as of the Closing: (i) the contractsWorking Capital (the “Estimated Working Capital”), agreements(ii) the Estimated Cash Reimbursement Amount, leases(iii) the Unredeemed Voucher Liability, other instruments(iv) the Unpaid Company Transaction Expenses (the “Estimated Unpaid Company Transaction Expenses”) and (v) the Company’s calculation of the Estimated Closing Payment based on the items set forth in clauses (i) through (iv) (such certificate, licenses the “Closing Financial Certificate”).
(h) Buyer shall have received duly executed payoff letters and other items which have been designated related lien releases in customary form reasonably satisfactory to Buyer in connection with an asterisk in Schedule 3.4 the repayment of the USB Credit Agreement and the release of the liens set forth on Section 3.10(a) of the Disclosure ScheduleSchedules.
(i) Concurrent with or prior to the Closing, which consents, approvals and actions Seller shall be in form and substance have consummated the GE Person Buy-Out on terms reasonably satisfactory acceptable to Buyer.
6.2.6 On (j) Concurrent with or prior to the Closing DateClosing, Seller Parent Buyer shall have delivered to Buyer all of obtained the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and R&W Insurance Policy on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory reasonably acceptable to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Accel Entertainment, Inc.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent contained in this Agreement Article II shall be true and correct on and in all respects as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all respects as of such that specified date), and (ii) to except where the extent that any inaccuracies in failure of such representations and warranties, individually or in the aggregate, have not had, warranties to be true and correct would not reasonably be expected to have, a CRL Business Material Adverse Effecthave an effect that the Buyer would deem material.
6.2.2 Seller Parent, Recap Subco and each (b) Seller shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement and each of the other transaction documents to be performed or complied with by each of them it prior to or on the Closing Date except Date.
(c) Seller shall have delivered to Buyer duly executed counterparts to the extent that any breaches of transaction documents (other than this Agreement) and such obligations, agreements, covenants other documents and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effectdeliveries set forth herein.
6.2.3 Buyer (d) ▇▇▇▇▇ shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 6.2(a) and Section 6.2(b) have been satisfied (the “Seller Closing Certificate”).
(e) ▇▇▇▇▇ shall have received a certificate of Seller Parent, dated the Closing Date and executed by Secretary or an officer Assistant Secretary (or equivalent officer) of Seller Parent, to certifying that attached thereto are true and complete copies of all resolutions adopted by the effect that each board of the representations and warranties directors of Seller Parent contained in authorizing the execution, delivery and performance of this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries other transaction documents and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement hereby and thereby, and that all such resolutions are in full force and effect and are all the Internal Reorganization under (or, as applicable, the taking of the indicated action resolutions adopted in connection with the transactions contemplated by this Agreement hereby and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyerthereby.
6.2.6 On the Closing Date, Seller Parent (f) ▇▇▇▇▇ shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of received a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or an Assistant Secretary (or equivalent officer) of Seller Parentcertifying the names and signatures of the officers of Seller authorized to sign this Agreement, the transaction documents and the other documents to be delivered hereunder and thereunder.
6.2.7 (g) Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on approval of its stockholders to consummate the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyertransactions contemplated hereunder.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Bio Medica Corp)
Conditions to Obligations of Buyer. (a) The obligations of Buyer to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each of the following conditions:
6.2.1 Each representation representations and warranty warranties of Seller Parent contained set forth in this Agreement shall have been true and correct at and as of the date hereof and shall be true and correct on at and as of the Closing Date, with the same force and effect Date as though such representations and warranties had been if made on at and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified representations and warranties refer specifically to an earlier date, in which case such representation or warranty representations and warranties shall have been true and correct as of such earlier date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each (b) Seller shall have performed or complied in all material respects with all obligations and agreements, and complied with all covenants and conditions, contained in required by this Agreement to be performed or complied with by each of them Seller at or prior to or on the Closing.
(c) Buyer shall have received a certificate dated the Closing Date except signed on behalf of Seller by the President of Seller to the extent effect that any breaches of such obligations, agreements, covenants the conditions set forth in Sections 7.2(a) and conditions, individually or in 7.2(b) have been satisfied (the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect"Seller Closing Certificate").
6.2.3 (d) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of any of the transactions contemplated by this Agreement or the Ancillary Agreements, (ii) affect adversely the right of Buyer to own the Purchased Assets or (iii) restrain or prohibit Buyer's ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the Business or Purchased Assets, or compel Buyer or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the Business or Purchased Assets or all or any material portion of the business and assets of Buyer and its Subsidiaries. No such Order shall be in effect.
(e) No Law shall have been enacted or shall be deemed applicable to the transactions contemplated by this Agreement or the Ancillary Agreements which has any of the effects set forth in clauses (i) through (iii) in Section 7.2(d).
(f) Buyer shall have received all Authorizations that are necessary for it to conduct the Business substantially as conducted by Seller on May 31, 2005.
(g) Seller shall have delivered to Buyer all agreements and other documents required to be delivered by Seller or a Stockholder to Buyer pursuant to Section 3.2 of this Agreement.
(h) Buyer shall have received a certificate of the Secretary of Seller Parent, dated the Closing Date and executed certifying: (A) that attached thereto are true and complete copies of all resolutions adopted by an officer the Board of Directors and the stockholders of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization Ancillary Agreements, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with respect tothe transactions contemplated by this Agreement and the Ancillary Agreements; and (B) to the contractsincumbency and specimen signature of each officer of Seller executing this Agreement and/or the Ancillary Agreements, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 a certification by another officer of Seller as to the incumbency and signature of the Disclosure Schedule, which consents, approvals and actions Secretary of Seller.
(i) Buyer shall be have received evidence in form and substance reasonably satisfactory to BuyerBuyer that all Liens other than Permitted Liens with respect to the Purchased Assets have been released.
6.2.6 On (j) A registration rights agreement substantially in the Closing Date, Seller Parent shall have delivered to Buyer all form of Exhibit E hereto (the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer"Registration Rights Agreement") shall have been duly executed by Seller and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) Sellers shall have duly performed and warranty of Seller Parent contained complied in all material respects with all agreements, covenants and conditions required by this Agreement shall be true and correct on and as each of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement Ancillary Documents to be performed or complied with by each of them it prior to or on the Closing Date except Date; provided, that, with respect to the extent agreements, covenants and conditions that any breaches of are qualified by materiality, Sellers shall have performed such obligations, agreements, covenants and conditions, individually as so qualified, in all respects.
(b) No Action shall have been commenced against Buyer, either Seller or in the aggregateCompany, which would prevent the Closing. No injunction or restraining order shall have not hadbeen issued by any Governmental Authority, and would not reasonably be expected to havein effect, a CRL Business Material Adverse Effectwhich restrains or prohibits any transaction contemplated hereby.
6.2.3 (c) All approvals, consents and waivers that are listed on Section 3.05 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(d) The Ancillary Documents shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Buyer.
(e) Buyer shall have received resignations of the Sellers as managers of the Company.
(f) Sellers shall have delivered to Buyer a good standing certificate (or its equivalent) for the Company from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which the Company is organized.
(g) Each Seller shall have delivered to Buyer a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that such Seller is not a foreign person within the meaning of Section 1445 of the Code.
(h) To the extent that the Units have been certificated, Sellers shall have delivered, or caused to be delivered, to Buyer unit certificates evidencing the Units, free and clear of Encumbrances,
(i) Buyer shall have received a certificate, dated the Closing Date and signed by each Seller, that each of the conditions set forth in Section 6.02(a) have been satisfied.
(j) Buyer shall have received a certificate of Seller Parent, dated the Closing Date Sellers certifying that attached thereto are true and executed complete copies of all resolutions adopted by an officer of Seller Parent, to the effect that each members and managers of the representations Company authorizing the execution, delivery and warranties performance of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries Ancillary Documents and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement hereby and thereby, and that all such resolutions are in full force and effect and are all the Internal Reorganization under (or, as applicable, the taking of the indicated action resolutions adopted in connection with the transactions contemplated by hereby and thereby.
(k) Buyer shall have received a certificate of the Sellers certifying the names and signatures of each Seller and any other Seller Affiliate authorized to sign this Agreement Agreement, the Ancillary Documents and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses documents to be delivered hereunder and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyerthereunder.
6.2.6 On the Closing Date, Seller Parent (l) Sellers shall have delivered to Buyer all of such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied transactions contemplated by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' this Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Equity Purchase Agreement
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) 's waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent contained in this Agreement ARTICLE III shall be true and correct on and in all respects as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all respects as of such that specified date), and (ii) to except where the extent that any inaccuracies in failure of such representations and warranties, individually or in the aggregate, have not had, warranties to be true and correct would not reasonably be expected to have, have a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each (b) Seller shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them it prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectDate.
6.2.3 (c) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 6.02(a) and Section 6.02(b) have been satisfied.
(d) Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by Secretary or an officer Assistant Secretary (or equivalent officer) of Seller Parent, to certifying that attached thereto are true and complete copies of all resolutions adopted by the effect that each board of the representations and warranties directors of Seller Parent contained in authorizing the execution, delivery and performance of this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement hereby, and that all such resolutions are in full force and effect and are all the Internal Reorganization under (or, as applicable, the taking of the indicated action resolutions adopted in connection with the transactions contemplated hereby.
(e) Buyer shall have received from Seller a Pledge Agreement in form and substance satisfactory to Buyer (the “Pledge Agreement”), duly executed by Seller.
(f) Seller shall have received, at its annual meeting of the shareholders of Seller, approval by the Seller’s shareholders for the sale of all or substantially all of the assets of Seller (including (1) the sale of the Shares of the Company; (2) the sale of the equity interests of the ARC Florida, LLC, a Delaware corporation (“ARC Florida”) and of Quadrant Metals Technologies LLC, a Delaware limited liability company (“QMT”), (2) the equity interests (quotas) in AFT-Hungary Kft., a Hungarian Korlátolt Felelősségű Társaság (limited liability company) (“AFT-Hungary”), to The Best Investments Kft., a Hungarian Korlátolt Felelősségű Társaság (limited liability company) (3) and all or substantially all of the assets of ARC Colorado, Inc., a Colorado corporation (“ARC CO (CO)”) to ARC Colorado, Inc., a Delaware corporation (“ARC CO (DE)”) (the Company, together with AFT-Hungary, ARC Florida and QMT, the “Seller Subsidiaries”)).
(g) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying the names and signatures of the officers of Seller authorized to sign this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall documents to be in form and substance reasonably satisfactory to Buyerdelivered hereunder.
6.2.6 On the Closing Date, (h) Seller Parent shall have delivered delivered, or caused to be delivered, to Buyer all of the following:
(i) stock share certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be Shares, free and clear of all Indebtedness and Encumbrances, duly endorsed in blank, blank or be accompanied by stock powers or other instruments of transfer powers duly executed in blank, blank and shall be accompanied by with all requisite documentary or required stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parenttax stamps affixed.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Securities Purchase Agreement
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are Closing is subject to the satisfaction (or or, to the extent permitted by law, waiver in writing by Buyer) at or prior to the Closing of each of the following further conditions:
6.2.1 Each representation (a) the representations and warranty warranties of Seller Parent contained in this Agreement (i) that are qualified as to materiality shall be true and correct on at and as of the Closing DateDate in all respects, with the same force as if made at and effect as though of such date (except for any such representations and warranties had been made on and as of the Closing Date, except (i) which relate to the extent that any such representation or warranty is made as of a specified an earlier date, in which case such representation or warranty shall have been be true and correct as of such earlier date), and (ii) that are not qualified as to materiality shall be true and correct at and as of the extent that Closing Date in all material respects as if made at and as of such date (except for any inaccuracies in such representations and warrantieswarranties which relate to an earlier date, which shall be true and correct in all material respects as of such earlier date);
(b) Seller shall have performed (or caused to be performed) in all material respects all of the agreements required to be performed (or caused to be performed) by it under this Agreement prior to the Closing Date;
(c) no event shall have occurred during the period from the date of this Agreement until the Closing Date that has had or would reasonably be expected to have, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.;
6.2.2 Seller Parent, Recap Subco and each Seller (d) the conditions to the Commitment Letter shall have performed all obligations been satisfied in their entirety and agreementsthe proceeds of the financing contemplated by the Commitment Letter shall be available to Buyer or an Affiliate of Buyer on the terms of the Commitment Letter or on such other terms as shall have been agreed by Buyer;
(e) Seller or its Affiliates, as applicable, shall have executed and complied with all covenants and conditions, contained in this Agreement delivered each of the documents required to be performed delivered by Seller or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or its Affiliates as set forth in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.Section 2.07;
6.2.3 (f) Buyer shall have received a certificate of Seller Parent, Seller’s secretary or assistant secretary dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt , certifying (i) the incumbency and signatures of the consents officers of Seller and its Affiliates executing this Agreement and each of the other Ancillary Agreements to which Seller or approvals its Affiliates are a party, and (ii) the corporate authority of Seller and its Affiliates to the consummation of enter into the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing DateAncillary Agreements; and
(vg) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in a certificate signed by an appropriate executive officer of Seller dated as of the amounts and on Closing Date to the terms and effect that the conditions set forth in the Commitment Letters or such other terms Sections 8.02(a) and conditions satisfactory to Buyer8.02(b) have been satisfied.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent contained in this Agreement Article IV (other than the Seller Fundamental Representations) shall be true and correct on and in all material respects as of the Closing DateDate and the Seller Fundamental Representations shall be true and correct in all respects, in each case, with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all material respects as of such that specified date); provided , and (ii) to the extent however , that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business warranties qualified by Material Adverse Effect.Effect or other materiality qualifier must instead be true and correct in all respects;
6.2.2 Seller Parent, Recap Subco and each (b) Seller shall have duly performed all obligations and agreements, and complied in all material respects with all agreements and covenants and conditions, contained in required by this Agreement to be performed or complied with by each of them prior to or on at the Closing;
(c) Seller shall have delivered to Buyer duly executed counterparts to the Transaction Documents (other than this Agreement and the Employment Agreements) and such other documents and deliverables set forth in Section 3.02(a);
(d) Buyer shall have received a certificate, dated the Closing Date except to and signed on behalf of Seller by a duly authorized officer (in such Person’s capacity as such and not individually), that each of the extent that any breaches of such obligationsconditions set forth in Section 7.02(a), agreements, covenants Section 7.02(b) and conditions, individually or in Section 7.02 (i) have been satisfied (the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.“Closing Certificate”);
6.2.3 (e) Buyer shall have received a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that Seller is not a foreign person within the meaning of Seller Parent, dated Section 1445 of the Closing Date and Code duly executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.Seller;
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by (f) [Intentionally omitted];
(g) Buyer shall have tendered their resignations effective as of the Closing Date.obtained a fully bound R&W Insurance Policy;
6.2.5 (h) Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:Financing;
(i) stock certificates representing Since the Purchased Shares. Each such certificate evidencing the Purchased Shares date of this Agreement, there shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of have been a date within thirty (30) days of the Closing DateMaterial Adverse Effect; and
(vj) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of At the Closing, each of Seller, D▇▇▇▇▇ ▇▇▇▇▇▇▇ and E▇▇▇ ▇▇▇▇▇▇▇▇▇▇ shall have invested $250,000, $250,000 and $500,000, respectively, in form and substance reasonably satisfactory to Buyerthe Parent.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are hereby is subject to the satisfaction (of the following conditions, any one or waiver more of which may be waived in writing by Buyer:
(a) at Buyer Approvals shall have been duly made, given or prior to the Closing of each obtained and shall be in full force and effect;
(b) Each of the following conditions:
6.2.1 Each representation representations and warranty warranties of Seller Parent contained in this Agreement (other than those contained in Section 3.2 and Section 3.6, which shall be true and correct on in all respects) shall be true in all material respects as of the date of this Agreement and as of the Closing DateClosing, with the same force as if made at and effect as though of that time (other than such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made expressly address matters only as of a specified certain date, in which case such representation or warranty shall have been need only be true and correct as of such certain date, and (ii) without giving effect to the extent that any inaccuracies in such representations and warrantieswords “material”, individually “material adverse effect” or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business “Material Adverse Effect.”;
6.2.2 Seller Parent, Recap Subco and each (c) Seller shall have performed or complied in all obligations and agreements, and complied material respects with all of the covenants and conditions, contained in agreements required by this Agreement to be performed or complied with by each it at or before the Closing;
(d) Seller shall have delivered to Buyer a certificate, dated as of them prior to or on the Closing Date except to Date, certifying that the extent that conditions specified in Sections 8.1(b) and 8.1(c) have been fulfilled;
(e) No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction, judgment or other order shall have been enacted, entered, promulgated, enforced or issued by any breaches Governmental Authority, or other legal restraint or prohibition preventing the consummation of such obligations, agreements, covenants and conditions, individually or the transactions contemplated hereby shall be in the aggregate, have not hadeffect, and would not reasonably be expected no investigation, action or proceeding before a Governmental Authority shall have been instituted or threatened challenging or seeking to have, a CRL Business Material Adverse Effect.restrain or prohibit the transactions contemplated hereby or to recover damages in connection therewith;
6.2.3 (f) Buyer shall have received a certificate true and complete copy, certified by the secretary of Seller ParentSeller, dated of resolutions duly and validly adopted by the Closing Date and executed by an officer board of Seller Parentdirectors of Seller, to the effect that each evidencing their authorization of the representations execution and warranties delivery of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as consummation of transactions contemplated hereby;
(g) the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals waiting period applicable to the consummation of the transactions contemplated by this Agreement and hereby under the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which HSR Act shall have expired or have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.terminated;
6.2.6 On the Closing Date, (h) Seller Parent shall have delivered to Buyer all of the following:documents, certificates and other instruments required to be delivered under, and otherwise complied with the provisions of, Section 2.3(b);
(i) stock certificates representing Buyer shall have obtained such third party financing as may be required for Buyer to consummate the Purchased Shares. Each such certificate evidencing transactions contemplated by this Agreement, which shall have been approved by the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceledboard of directors of the General Partner;
(iij) all stock certificatesBuyer shall not have provided notice to Seller that Buyer is contemplating a material acquisition transaction or business combination and the Board of Directors of Targa Resources GP LLC, minute booksthe general partner of Buyer, stock bookshas determined that, ledgers and registersin light of such pending material transaction, corporate seals and other corporate records relating to Buyer cannot proceed with consummation of the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiarytransactions contemplated hereby;
(iiik) original Seller shall have delivered the Audited Financial Statements, and such Audited Financial Statements shall not reflect any material negative variances in assets or copies liabilities taken in the aggregate, or in cash flows or results of consents, filings, authorizations, approvals and other actions described operations from such items reflected in Sections 5.5.5, 6.1.1(b) or 6.2.5;the unaudited financial statements for the Business delivered by Seller to Buyer prior to the execution of this agreement; and.
(ivl) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 BuyerTitle Commitments referenced in Section 6.13(a) and such Title Commitments shall not reflect any defects in title other than Permitted Liens and other defects which would not, Recap Co and Recap Subco shall have received debt and equity proceeds individually or in the amounts aggregate, reasonably be expected to materially and on adversely impact the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date ability of the Closing, in form and substance reasonably satisfactory Joint Venture to Buyerconduct its business as currently conducted.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Targa Resources Partners LP)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of the Seller Parent contained in this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in which case such representation or warranty all respects).
(b) The Seller shall have been true terminated any and correct as of such dateall agreements between Seller or its Affiliates, on the one hand, and any Management Company or Property Company, on the other hand.
(iic) The Seller shall have resigned as the managing member of each of the Management Companies and removed itself and any of its Affiliates from any offices of any Management Company.
(d) The Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and to be performed or complied with by it prior to or on the extent that Closing Date.
(e) From the date of this Agreement, there shall not have occurred any inaccuracies in such representations and warrantiesMaterial Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, have not hadwith or without the lapse of time, and would not could reasonably be expected to have, result in a CRL Business Material Adverse Effect.
6.2.2 Seller Parent(f) At least five (5) Business Days before Closing, Recap Subco and each the Seller shall have performed delivered to Buyer a certificate indicating whether all obligations of the Property Companies have achieved Stabilization and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent identifying any Property Companies that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effectnot.
6.2.3 (g) The Seller shall have delivered to Buyer a good standing certificate (or its equivalent) for each Management Company and Property Company from the secretary of state or similar governmental entity of the jurisdiction under the laws in which each such Management Company or Property Company is organized.
(h) Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parentcompleted, to the effect that each its satisfaction, due diligence of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such DateSubsidiaries, except as set forth in the Updatetheir assets, and that the Update is true and correctLiabilities.
6.2.4 (i) The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall items required to be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating delivered pursuant to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller ParentSection 1.03 hereof.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (MacKenzie Realty Capital, Inc.)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate effect the transactions contemplated by under this Agreement are shall be subject to the satisfaction (or waiver in writing by Buyer) fulfillment at or prior to the Closing of each of the following additional conditions:
6.2.1 Each representation (a) The representations and warranty warranties of each Seller Parent contained set forth in this Agreement (i) if qualified in any respect as to materiality (including, without limitation, references to all material respects), shall be true and correct, and (ii) if not qualified as to materiality, shall have been true and correct on in all material respects, in each case as of the date of this Agreement and as of the Closing Date, with the same force and effect Date as though such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that unless any such representation or warranty is made only as of a specified specific date, in which case event such representation or and warranty shall have been be true and correct as of such specified date.
(b) Each Seller shall have complied with or performed in all material respects all covenants and agreements required to be performed by it under this Agreement at or prior to the Closing.
(c) Each Seller shall have furnished Buyer with a certificate executed by its President and Chief Financial Officer, as to compliance with the conditions set forth in Sections 8.2(a) and (iib).
(d) to Buyer shall have received an opinion of King & Spalding LLP, dated the extent that any inaccuracies in such representations and warrantiesClosing Date, individually or substantially in the aggregateform attached hereto as Exhibit G (the "Seller Opinion").
(e) Between the date of this Agreement and the Closing, there shall not have not had, and would not reasonably be expected to have, a CRL Business been any Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect tof) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which All consents, approvals and actions other requirements (i) for the assignment of the IDB Leases and the transfer of the Bonds and (ii) for the subdivision of the IDB Leasehold Parcel and the transfer of the Excluded Mill Property to Seller shall be in form and substance reasonably satisfactory to Buyerhave been obtained or satisfied.
6.2.6 On the Closing Date, (g) Seller Parent shall have delivered to Buyer all evidence of a lien release instrument reasonably satisfactory to Buyer's title company that the following:obligations secured by the ▇▇▇▇▇▇▇▇ ▇▇▇▇ have been satisfied.
(ih) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer a copy of the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds Transition Services Agreement in the amounts and on form attached hereto as Exhibit A, the terms and conditions set forth Chip Supply Agreement in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parentform attached hereto as Exhibit B, Recap Cothe Option Agreement in the form attached hereto as Exhibit C, Recap Subco the Maplesville Agreement in the form attached hereto as Exhibit D, the Headquarters Lease in the form attached hereto as Exhibit E and the Sellers, dated Rooster Bridge Lease in the date of the Closing, in form and substance reasonably satisfactory to Buyer.attached hereto as Exhibit F.
Appears in 1 contract
Conditions to Obligations of Buyer. and the Corporation ------------------------------------------------------
5.1 Buyer's Conditions. ------------------ The obligations of Buyer to consummate the transactions contemplated hereunder are conditioned upon the following, any or all of which may be waived by this Agreement are subject to the satisfaction Buyer in its sole and absolute discretion:
(or waiver in writing by BuyerA) at or prior to the Closing of each All representations and warranties of the following conditions:
6.2.1 Each representation and warranty of Seller Parent Corporation contained in this Agreement that are qualified as to materiality shall be true and correct on and as of the Closing Date, Date with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except (i) to and all representations and warranties of the extent that any such representation or warranty is made as of a specified dateCorporation contained in this Agreement which are not so qualified shall, in which case such representation or warranty shall have been all material respects, be true and correct on and as of such date, the Closing Date with the same force and (ii) to the extent that any inaccuracies in effect as though such representations and warrantieswarranties had been made on and as of the Closing Date.
(B) The Corporation shall, individually or in the aggregateall material respects, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all of the material covenants and conditionsagreements (including the agreement to make the deliveries set forth in Section 6.1) required by or pursuant to this Agreement, contained in or any Exhibit or instrument delivered pursuant to this Agreement Agreement, to be performed or complied with by each of them it on or prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer (C) The Corporation shall have received evidence obtained and delivered to the Buyer consents, in form reasonably satisfactory to the Buyer, executed by (i) every party (other than the Corporation) to every material Non-Assignable Contract, consenting to the assignment and delegation to the Buyer of receipt such material Non- Assignable Contract; (ii) every party (other than the Corporation) to every other material Included Agreement, if any, consent to the assignment of which has not been deemed granted pursuant to the procedures described in Section 1.4(C)(iii); and (iii) every party (other than the Corporation) to every material Included Agreement to which the Corporation becomes a party after the date hereof whose consent to the assignment and delegation of such agreement to the Buyer is required in order to avoid a violation of such agreement.
(D) No Order shall be in effect which restrains or prohibits the transactions contemplated hereby or which would limit or adversely affect the ability of the consents Buyer to use the Assets to conduct the business now conducted by the Corporation, and no Action by any Authority or approvals other Person shall be pending which seeks to restrain the consummation consummation, or challenges the validity or legality, of the transactions contemplated by this Agreement and or which would, if successful, limit or adversely affect the Internal Reorganization under ability of the Buyer to use the Assets to conduct the business now conducted by the Corporation.
(orE) All consents, as applicableapprovals or orders of any Authority, the taking granting of which is required for the indicated action in connection with consummation of the transactions contemplated hereby, shall have been obtained; and all waiting and notification periods specified under applicable Law the termination or expiration of which is necessary for such consummation shall have been terminated or shall have expired.
(F) The Buyer shall have received the opinion of Venture Law Group, counsel to the Corporation, substantially in the form annexed hereto as Exhibit 5.1(F).
(G) The Bankruptcy Court shall have entered an order granting the Sale Motion in form and substance satisfactory to ▇▇▇▇▇▇ and the Buyer: (i) approving and authorizing (pursuant to Bankruptcy Code Section 363) the performance by the Corporation of this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 consummation of the Disclosure Scheduletransactions contemplated hereby, which consents, approvals and actions shall be in form and substance reasonably satisfactory including authorizing the Company to Buyer.
6.2.6 On sell the Closing Date, Seller Parent shall have delivered Assets to Buyer free and clear of all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blankliens, claims and encumbrances, without imposing any restrictions, obligations, conditions or be accompanied by stock transfer powers duly executed in blank, liabilities not otherwise imposed herein; and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers approving the assumption and registers, corporate seals and other corporate records relating assignment to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws Buyer of the United States of America Included Agreements (or other appropriate certificates in those jurisdictions that do pursuant to Bankruptcy Code section 365) (the "Sale Order"). The Sale Order shall: (x) not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on modify the terms and conditions set forth of this Agreement in a manner not consented to by both the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco Corporation and the Sellers, dated the date of the Closing, in form Buyer; (y) not be subject to a stay; and substance reasonably satisfactory (z) be final and no longer subject to Buyerappeal.
Appears in 1 contract
Sources: Asset Purchase Agreement (Vimrx Pharmaceuticals Inc)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are to be consummated at the Closing is subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each of the following conditions:
6.2.1 Each representation (a) Unless waived by Buyer, the Stockholders shall have obtained at their own expense (and warranty shall have provided copies thereof to Buyer) all of Seller Parent contained the waivers, permits, consents, approvals or other authorizations, and effected all registrations, filings and notices which are required on the part of Rotmans, including without limitation, those set forth in Section 3.4 of the Disclosure Schedule;
(b) the representations and warranties of the Stockholders set forth in this Agreement shall be true and correct on and in all respects, in each case as of the Closing Datedate of the Closing, with except to the same force and effect as though extent such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is are specifically made as of a specified date, particular date (in which case such representation or warranty representations and warranties shall have been be true and correct as of such date, and );
(iic) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller Stockholders shall have performed all obligations and agreements, and or complied with all their agreements and covenants and conditions, contained in this Agreement required to be performed or complied with by each under this Agreement as of them or prior to the Closing;
(d) no Legal Proceeding shall be pending or on the Closing Date except to the extent that any breaches of such obligationsthreatened wherein an unfavorable judgment, agreementsorder, covenants and conditionsdecree, individually stipulation or in the aggregate, have not had, and injunction would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the (i) prevent consummation of the transactions contemplated by this Agreement and the Internal Reorganization under Agreement, (or, as applicable, the taking of the indicated action in connection with ii) cause the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of Buyer to own the Shares, own, operate and control Rotmans, or to conduct the Internal Reorganization with respect to) business of Rotmans as currently conducted, following the contractsClosing, agreementsand no such judgment, leasesorder, other instrumentsdecree, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions stipulation or injunction shall be in form and substance reasonably satisfactory to Buyer.effect;
6.2.6 On (e) the Closing Date, Seller Parent Stockholders shall have delivered to Buyer all the Stockholder Certificate;
(f) Buyer shall have received copies of the following:resignations, effective as of the Closing, of the Stockholders in their capacity as directors and officers of Rotmans;
(g) prior to the Closing, (i) Rotmans shall deliver to Buyer and to the Internal Revenue Service notices that the Shares are not “U.S. real property interests” in accordance with Treasury Regulations under Sections 897 and 1445 of the Code, or (ii) each of the Stockholders shall deliver to Buyer certifications that they are not foreign persons in accordance with the Treasury Regulations under Section 1445 of the Code. If Buyer does not receive either the notices or the certifications described above on or before the Closing Date, Buyer shall be permitted to withhold from the payments to be made pursuant to this Agreement any required withholding tax under Section 1445 of the Code;
(h) unless waived by Buyer, the Stockholders shall have obtained at their expense (and shall have provided to Buyer) Tax good standing certificates or other documentation satisfactory to Buyer with respect to each jurisdiction to which Rotmans may be subject to Tax authority; and
(i) stock Buyer shall have received such other certificates representing and instruments (including certificates of good standing (or equivalent) of Rotmans in its jurisdictions of organization and the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed various foreign jurisdictions (if any) in blankwhich it is qualified to do business, or be accompanied by stock transfer powers duly executed in blankcertified charter documents, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing incumbency of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco officers and the Sellers, dated the date adoption of authorizing resolutions) as it shall reasonably request in connection with the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by be performed under this Agreement at the Closing are subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of each of the following conditionsconditions on or before the Closing, unless waived in writing by Buyer:
6.2.1 Each representation (1) The representations and warranty warranties of Seller Parent contained in this Agreement made herein shall be true and correct in all material respects on the date of this Agreement, and on the Closing Date as though made at and as of such time, and Seller shall have performed and complied with in all material respects all covenants and agreements and satisfied all conditions required to be performed or complied with by it under this Agreement on or before the Closing Date.
(2) Buyer shall have received copies of the resolutions approved and adopted by the Board of Directors of Seller and Oldco authorizing the execution, delivery and performance of this Agreement and the Related Agreements, and the Certificate or Articles of Incorporation of each Company and Oldco and Bylaws of each Company and Oldco, all certified by the Seller's, Oldco's and each Company's, as applicable, Secretary or Assistant Secretary.
(3) Buyer shall have received a certificate, dated as of the Closing Date, with executed by Seller certifying that (i) the same force and effect as though such representations and warranties had been made on of Seller contained in this Agreement are true and correct in all material respects as of the Closing Date, except (i) to the extent that any such representation or warranty is Date as though made as of a specified date, in which case such representation or warranty shall have been true at and correct as of such datetime, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have it has duly performed all obligations and agreements, and complied with with, in all material respects, all covenants and conditions, contained in agreements and satisfied all conditions required by this Agreement to be performed or complied with by each of them it prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectDate.
6.2.3 (4) Buyer shall have received a certificate an opinion of Seller ParentMcGuire, Woods, Battle & ▇▇▇▇▇▇ LLP, legal counsel for Seller, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date, substantially in the form of the opinion attached hereto as Exhibit G.
(5) All corporate and other proceedings to be taken by Seller necessary to carry out this Agreement, and all documents incident thereto shall be reasonably satisfactory in form and substance to Buyer and its legal counsel.
6.2.5 Buyer shall have received evidence satisfactory to Buyer (6) All consents, authorizations, orders and approvals of receipt governmental or regulatory authorities and of the consents individuals or approvals to business entities reasonably required for the consummation of the transactions contemplated by this Agreement (other than those required under leases of real property described in Schedule 2.1(b)) shall have been obtained, and all waiting periods specified by law with respect thereto shall have passed.
(7) No order of any court or governmental agency shall be in effect which restrains or prohibits the Internal Reorganization under (or, as applicable, the taking consummation of the indicated action in connection with the transactions contemplated by this Agreement Agreement, and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which there shall not have been designated with an asterisk in Schedule 3.4 threatened, nor shall there be pending, any action or proceeding by or before any such court or governmental agency which is likely to prohibit or delay or successfully challenge the validity of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyertransactions contemplated by this Agreement.
6.2.6 On (8) Such directors and officers of the Closing DateCompanies as Buyer shall request shall have tendered written resignation to the applicable Company, to be effective immediately prior to the Closing.
(9) Seller Parent shall have delivered to Buyer all of the following:deliveries described in Section 5.2.
(i10) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parentobtained the financing contemplated by the Commitment Letters; provided, Recap Cohowever that this provision shall not apply if Buyer does not obtain such financing due to its failure to fulfill any obligations which are reasonably within its control.
(11) All intercompany accounts payable and receivable between the Seller, Recap Subco on the one hand, and the SellersCompanies, dated on the date other, including intercompany Taxes payable, will be deemed settled by the Seller and contributed to the capital of the Closingapplicable Company, except that the intercompany trade receivables of the Companies from the Seller for sales of mattresses, box springs and foundations manufactured by the Companies shall be paid in form and substance reasonably satisfactory to Buyer.cash after the Closing Date in accordance with the terms of the Mattress Supply Agreement, which is attached hereto as Exhibit D.
(12) The Companies shall have entered into employment arrangements with the persons set forth on Schedule 4.1
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement Closing are subject to the satisfaction (or waiver in writing by Buyer) at of the following further conditions:
(i) Each of Parent and TTSI shall have performed in all material respects all of its obligations under the Transaction Documents required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of each of the following conditions:
6.2.1 Each representation and warranty of Seller Parent contained in this Agreement the Transaction Documents shall be true and correct on at and as of the date of this Agreement and as of the Closing Date, with the same force as if made at and effect as though of each such date, except that those representations and warranties had been which are by their express terms made as of a specific date shall be true and correct only as of such date, in each case except for inaccuracies that could not reasonably be expected to have a Material Adverse Effect on the TTS Business, and (iii) Buyer shall have received a certificate signed by an executive officer of Parent to the foregoing effect;
(b) the transactions contemplated by Section 2.01 shall have occurred in accordance with the terms of this Agreement;
(c) Parent or the applicable Seller Company shall have executed and delivered, on or before the Closing Date, the Transaction Documents that are required to be signed by a Seller Company;
(d) there shall not have occurred from March 29, 1998 to the Closing a material adverse effect on the assets, properties, business, financial condition, results of operations or prospects of the TTS Business taken as a whole;
(e) TTSI shall have obtained the financing contemplated by the Commitment Letters or on other terms satisfactory to Buyer; and
(f) TTSI shall not be obligated for any indebtedness for borrowed money other than as contemplated by Section 2.02.
(i) Buyer shall have performed in all material respects all of its obligations under the Transaction Documents required to be performed by it at or prior to the Closing Date, (ii) the representations and warranties of Buyer contained in the Transaction Documents shall be true and correct at and as of the date of this Agreement and as of the Closing Date, as if made at and as of each such date, except (i) to the extent that any such representation or warranty is those representations and warranties which are by their express terms made as of a specified date, in which case such representation or warranty specific date shall have been be true and correct only as of such date, and (ii) to the extent in each case except for inaccuracies that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would could not reasonably be expected to have, have a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreementsEffect on Buyer, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer (iii) Parent shall have received a certificate of Seller Parent, dated the Closing Date and executed signed by an executive officer of Seller Parent, Buyer to the effect that each of the representations foregoing effect;
(b) The transactions contemplated by Section 2.02 and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who Section 2.03(a) shall have been requested to resign by consummated in accordance with the terms of this Agreement; and
(c) Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents executed and delivered, on or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On before the Closing Date, Seller Parent shall have delivered the Transaction Documents that are required to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied signed by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Reorganization, Recapitalization and Stock Purchase Agreement (True Temper Sports Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) All of the representations and warranty warranties of Seller Parent contained in this Agreement shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality) or in all material respects (in the case of any representation or warranty not qualified by materiality) on and as of the date hereof and on and as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in the accuracy of which case such representation or warranty shall have been true and correct be determined as of such date, and (ii) to the extent that any inaccuracies specified date in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effectall respects).
6.2.2 Seller Parent, Recap Subco and each (b) Seller shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them it prior to or on the Closing Date except Date; provided, that, with respect to the extent agreements, covenants and conditions that any breaches of are qualified by materiality, Seller shall have performed such obligations, agreements, covenants and conditions, individually or as so qualified, in all respects.
(c) Since the date of this Agreement, there shall not have occurred any material adverse change in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effector the condition of the Purchased Assets.
6.2.3 Buyer shall have received a certificate of (d) All requirements for the valid consummation by Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under documents to be delivered hereunder shall have been fulfilled, and all authorizations, consents and approvals of all persons or entities required to be obtained (or, as applicable, including the taking expiration of all applicable waiting periods) in order to permit the indicated action in connection with consummation by Seller of the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which documents to be delivered hereunder shall have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably obtained on terms satisfactory to Buyer.
6.2.6 On (e) All Encumbrances relating to the Closing DatePurchased Assets shall have been released in full, and Seller Parent shall have delivered to Buyer all written evidence, in form satisfactory to Buyer in its sole discretion, of the following:release of such Encumbrances.
(f) No Action shall have been commenced against Buyer or Seller, which would prevent the Closing. No injunction or restraining order shall have been issued by any governmental authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(g) All employees and independent contractors listed on Schedule 6.1(g) (individually, a “Key Employee” and collectively, the “Key Employees”) shall have accepted Buyer’s offer to employ such employee, or engage such independent contractor, as of the Closing Date on such terms and conditions (including base compensation, benefits and non-competition covenants) that are satisfactory to Buyer in its sole discretion; provided, however, that Buyer agrees that such terms and conditions, on the whole, will be comparable to the terms and conditions provided by Seller prior to the Closing; provided, further, that any such employment shall be at- will notwithstanding any existing agreement between such Key Employee and Seller; and provided, further, that a condition to Buyer’s offer shall be that the Key Employees execute a non-disclosure agreement in favor of Buyer in form and content satisfactory to Buyer and Seller. Buyer intends to offer employment to all employees of Seller, and Seller shall terminate all employees who accept Buyer’s offer of employment as of the Closing Date.
(h) Buyer shall have received financing on terms acceptable to Buyer for the payment of the Purchase Price and consummation of the transactions contemplated by this Agreement.
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer duly executed counterparts to the Investors' Agreement.
6.2.8 Buyer, Recap Co documents and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions deliveries set forth in the Commitment Letters or such other terms and conditions satisfactory to BuyerSection 2.02(a).
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction fulfillment or waiver, at or prior to the Closing, of each of the following further conditions:
(or waiver a) (i) Parent and each Seller shall have performed and complied with in writing all material respects all of its obligations hereunder required to be performed by Buyer) it at or prior to the Closing Date; (ii) the representations and warranties of Parent and each of the following conditions:
6.2.1 Each representation and warranty of Seller Parent contained in this Agreement and in any certificate or other writing delivered by Parent or such Seller pursuant hereto (A) that are qualified by materiality or Material Adverse Effect shall be true and correct on and (B) that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects, in each case at and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on at and as of such Date, date (except that representations and warranties that by their terms speak as set forth in of the Update, and that the Update is date of this Agreement or some other date need be true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed true and correct in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formationmaterial respects, as the case may be, dated only as of a date within thirty such specified date); and (30iii) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in a certificate signed by a senior executive officer of YBI to the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyerforegoing effect.
6.2.9 (b) Buyer shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for Seller Parent, Recap Co, Recap Subco to Parent and the Sellers, dated the date of the ClosingClosing Date and such other appropriate counsel, in form and substance reasonably satisfactory to Buyer, with respect to the matters specified in Section 3.01, Section 3.02 and Section 3.04.
(c) Buyer shall have received all documents it may reasonably request relating to the existence of Parent and Sellers and the authority of Parent and each Seller for this Agreement, all in form and substance reasonably satisfactory to Buyer, including a true and complete copy, certified by the Secretary or Assistant Secretary of Parent and each Seller, of the resolutions duly and validly adopted by the Board of Directors of Parent and such Seller evidencing its authorization of the execution and delivery of this Agreement and consummation of the transactions contemplated hereby.
(d) Sellers shall have received all Material Consents.
(e) The FCC Consent shall contain no provision materially adverse to any of Buyer, Buyer’s Affiliates, or the Station; provided that the parties understand and agree that (A) the potential divestitures referred to in Section 6.02 shall not be deemed to be material to Buyer and (B) the obligation of the parties to consummate the transactions contemplated by this Agreement is not subject to the condition that the FCC Consent shall have become a Final Order.
(f) Buyer shall have received the Title Commitments and the Title Policy.
(g) During the five (5) days immediately preceding what would otherwise be the Closing Date, and on the Closing Date, the Station shall have been and shall be operating continuously with all of its normal broadcasting capability other than any interruption of a duration no longer than thirty (30) minutes.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate effect the transactions contemplated by this Agreement are hereby is also subject to the satisfaction (or waiver in writing by Buyer) Buyer at or prior to the Closing of each Date of the following conditions:
6.2.1 Each representation (a) Since the date of this Agreement, no Material Adverse Effect shall have occurred and warranty of Seller be continuing;
(b) Seller, Limited Partner, Parent and Merger Sub shall have performed and complied in all material respects with the covenants and agreements contained in this Agreement which are required to be performed and complied with by such Person on or prior to the Closing Date (other than Section 4.3, which is subject to Section 9.2(f));
(c) The representations and warranties of Seller set forth in ARTICLE V of this Agreement, and the representations and warranties of Parent and Merger Sub set forth in ARTICLE VII of this Agreement, shall be true and correct on and as of the Closing Date, with the same force and effect as though such representations and warranties had been if made on at and as of the Closing Date, Date (except (i) to the extent that any such representation or warranty is expressly made as of a specified an earlier date, in which case such representation or and warranty shall have been will be true and correct only as of such date), and (ii) to except where the extent that any inaccuracies in failure or failures of such representations and warrantieswarranties to be so true and correct (without giving effect to any limitations or exceptions as to materiality or Material Adverse Effect set forth therein) would not, individually or in the aggregate, have not had, and would not reasonably be expected to have, result in a CRL Business Material Adverse Effect.;
6.2.2 Seller Parent, Recap Subco and each Seller (d) Buyer shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by received a certificate from the Chief Executive Officer of each of them prior to or on Parent and Seller, dated the Closing Date except stating that, to the extent that any breaches best of such obligationsofficer’s knowledge, agreementsthe conditions set forth in Sections 9.2(b) and 9.2(c) regarding Parent and Seller, covenants respectively, have been satisfied;
(e) The Required Regulatory Approvals shall have been obtained and conditionsbecome Final Regulatory Orders, and no terms (excluding those proposed in the applications for the Required Regulatory Approvals) shall have been imposed in connection with such Final Regulatory Orders by any Governmental Entity which terms, individually or in the aggregate, have not had, and would not reasonably be expected to have, result in a CRL Business Regulatory Material Adverse Effect.;
6.2.3 (f) Buyer shall have received the items to be delivered pursuant to Section 4.3; provided that the failure to deliver the items required to be delivered pursuant to Sections 4.3(e)-
(i) shall not be construed as a failure to satisfy the requirements of this Section 9.2(f) to the extent any deed, assignment, instrument of conveyance or certificate of Seller Parenttitle, dated termination or release (i) otherwise required pursuant to Sections 4.3(e)-(h) relates to parcels of immaterial Real Property, immaterial Easements, or immaterial titled or other Purchased Assets, each of which is subject to transfer subsequent to the Closing Date pursuant to Section 8.17; or (ii) otherwise required pursuant to Section 4.3(i) relates to terminations or releases of Non-Permitted Encumbrances on the Purchased Assets requiring the payment of immaterial amounts of cash, or the delivery of instruments, certificates or other documents or items required to remove Non-Permitted Encumbrances on assets that are immaterial to the Business, the Purchased Assets, the Colorado Business and executed by an officer of Seller Parentthe Colorado Assets, taken as a whole, and are subject, in each case, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on release subsequent to the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.pursuant to Section 8.17; and
6.2.4 (g) The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this the Asset Purchase Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection shall have occurred or shall occur concurrently with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to BuyerClosing.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are Transaction shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent contained the Sellers in this Agreement Article III that are qualified as to materiality or words of similar import shall be true and correct in all respects, and those representations and warranties not so qualified shall be true and correct in all material respects, on and as of the date hereof and on and as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in which case such representation or warranty all respects).
(b) The Sellers shall have been true duly performed and correct as of such date, and (ii) to the extent that any inaccuracies complied in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them it prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect toc) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent The Sellers shall have delivered to Buyer all of the followingfollowing documents:
(i) stock certificates representing The Assignment and Assumption Agreement, dated as of the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers Closing Date and duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceledthe Sellers;
(ii) all stock certificatesThe Termination of Payroll Processing Agreement, minute books, stock books, ledgers dated as of the Closing Date and registers, corporate seals duly executed by MME AZ and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap SubsidiaryLicensed Entity;
(iii) original or copies of consents, filings, authorizations, approvals An assignment and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as assumption agreement with respect to the valid existence premises located at 4▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Road, Suites 101, Mesa, Arizona, and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closinglandlord consent thereto, in form and substance reasonably satisfactory to Buyerthe Parties, duly executed by Seller Parent and O▇▇▇ ▇▇▇▇▇▇▇▇, Inc., as landlord thereunder;
(iv) An assignment and assumption agreement with respect to the premises located at 4▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Road, Suites 103, Mesa, Arizona, and landlord consent thereto, in form and substance reasonably satisfactory to the Parties, duly executed by Seller Parent and O▇▇▇ ▇▇▇▇▇▇▇▇, Inc., as landlord thereunder; and
(v) such other agreements, documents, instruments or certificates as may be reasonably requested by Buyer to effectuate the Transaction.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent Sellers contained in this Agreement Article 3, Article 4 and Article 5 shall be true and correct on and in all material respects as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all material respects as of such that specified date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect).
6.2.2 Seller Parent, Recap Subco and each Seller (b) Sellers shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them Sellers prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectDate.
6.2.3 (c) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of each Seller, that each of the conditions set forth in Section 8.2(a) and Section 8.2(b) has been satisfied.
(d) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each Seller Parent, dated certifying that attached thereto are true and complete copies of all resolutions adopted by the Closing Date and executed by an officer board of Seller Parent, to the effect that each directors of the representations respective Seller authorizing the execution, delivery and warranties performance of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement hereby, and that all such resolutions are in full force and effect and are all the Internal Reorganization under (or, as applicable, the taking of the indicated action resolutions adopted in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyerhereby.
6.2.6 On the Closing Date, Seller Parent (e) Goldcorp USA shall have delivered to Buyer stock certificates evidencing the Marigold Shares, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank.
(f) Homestake shall have delivered to Buyer bills of sale, assignments and other instruments of transfer sufficient to transfer the following:Homestake Interest, free and clear of all Encumbrances.
(g) The Pre-Closing Reorganization shall have been completed as required under Section 2.4 and Goldcorp USA shall have delivered to Buyer evidence, to the reasonable satisfaction of Buyer, that all Unrelated Assets have been transferred by Marigold and all Unrelated Liabilities have been assumed by Goldcorp USA and that the Pre-Closing Reorganization has been completed.
(h) The agreements and documents contemplated by Section 2.5 shall have been executed and delivered by the respective parties thereto (other than Buyer).
(i) stock certificates representing Goldcorp USA shall have delivered to Buyer written resignations of the Purchased Shares. Each such certificate evidencing the Purchased Shares officers and directors of Marigold.
(j) Homestake shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blankhave delivered to Buyer, and Goldcorp USA shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificateshave delivered to Buyer, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, a non-foreign affidavit dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory required under the Treasury Regulations issued pursuant to BuyerSection Code §1445 of the Code.
(k) The Sellers shall have delivered to Buyer an agreement between Goldcorp Inc., Marigold, ▇▇▇▇▇▇▇ Gold Corp and Homestake evidencing the termination of the agreement dated October 15, 2013 between those persons.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Silver Standard Resources Inc)
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are hereby is subject to the satisfaction of the following further conditions:
(or waiver i) Seller shall have performed in writing all material respects all of its obligations hereunder required to be performed by Buyer) at it on or prior to the Closing of each of Date and (ii) the following conditions:
6.2.1 Each representation representations and warranty warranties of Seller Parent contained in this Agreement shall be true in all material respects when made and correct on at and as of the Closing Date, with the same force as if made at and effect as though of such date.
(b) The representations and warranties had been made on of Seller in the Agreement that are qualified as to materiality shall be true and correct in all respects as of the date hereof and at and as of the Closing Dateas if made at and as of such time, except (i) to the extent other than representations and warranties that any such representation or warranty is made speak as of a specified date, in specific date or time (which case such representation or warranty shall have been need only be true and correct in all respects as of such datedate and time), and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is that are not qualified by materiality shall be true and correct on in all material respects as of the Closing Date as if made on such Date, except as set forth in the Update, date hereof and that the Update is true at and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer as if made at and as of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leasessuch time, other instruments, licenses than representations and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions warranties that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated speak as of a specific date within thirty or time (30) days of the Closing Date; and
(v) a which need only be true and correct copy in all material respects as of such date or time).
(c) Each of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco Company and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered the Stockholders' Agreement substantially in the form attached hereto as Exhibit B.
(d) The Company shall have executed and delivered the Registration Rights Agreement substantially in the form attached hereto as Exhibit C.
(e) The Company shall have executed and delivered a Management Fee Agreement in a form reasonably acceptable to Buyer and the Investors' AgreementCompany.
6.2.8 Buyer, Recap Co and Recap Subco (f) The Company shall have received debt executed and equity proceeds delivered a Stock Ownership Agreement in a form reasonably acceptable to Buyer and the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to BuyerCompany.
6.2.9 Buyer (g) The Company shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco paid all intercompany receivables owing to E&S and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyerits subsidiaries.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations obligation of Buyer to consummate the transactions contemplated by this Agreement are Closing is subject to the satisfaction satisfaction, or the waiver at Buyer’s sole and absolute discretion, of all the following further conditions:
(or waiver in writing a) The Company and Beneficial Holders shall have duly performed all of their obligations hereunder required to be performed by Buyer) them at or prior to the Closing of each Date.
(b) All of the following conditions:
6.2.1 Each representation representations and warranty warranties of Seller Parent the Company and Beneficial Holders contained in this Agreement Agreement, the Additional Agreements and in any certificate or other writing delivered by the Company or any Beneficial Holders pursuant hereto, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) be true, correct and complete at and as of the date of this Agreement, or, (ii) if otherwise specified, when made or when deemed to have been made, and (iii) shall be true true, correct and correct on and complete as of the Closing Date, with in the same force and effect case as though such representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, and (ii) to the extent that any inaccuracies in with only such representations and warranties, individually or exceptions as could not in the aggregate, have not had, and would not aggregate reasonably be expected to have, have a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller (c) There shall have performed all obligations and agreementsbeen no event, and complied with all covenants and conditions, contained in this Agreement to be performed change or complied with by each of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, occurrence which individually or in the aggregatetogether with any other event, have not hadchange or occurrence, and would not could reasonably be expected to have, have a CRL Business Material Adverse Change or a Material Adverse Effect, regardless of whether it involved a known risk.
6.2.3 (d) Buyer shall have received a certificate signed by the Chief Executive Officer and Chief Financial Officer of Seller Parent, dated the Closing Date Company and executed by an officer of Seller Parent, all Beneficial Holders to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correctclauses (a) through (c) of this Section 8.2.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 (e) Buyer shall have received evidence satisfactory all documents it may request relating to Buyer of receipt the existence of the consents or approvals to Company and its Subsidiaries and the consummation authority of the transactions contemplated by Company to enter into and perform under this Agreement and the Internal Reorganization under (orAgreement, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be all in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing DateBuyer and its legal counsel, Seller Parent shall have delivered to Buyer all of the following:
including (i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of the Company certified as of a recent date by the Secretary of State of its jurisdiction of organization, as (ii) copies of the case may be, Company’s by-laws or other organizational documents as effective on the date hereof; (iii) copies of each resolutions duly adopted by the board of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws directors of the United States of America, certified as true Company and correct by the Secretary unanimous vote or Assistant consent of the Company’s stockholders authorizing this Agreement, the Additional Agreements and the transaction contemplated hereby and thereby, (iv) a certificate of the Secretary of Seller Parent.
6.2.7 Seller Parentthe Company certifying as to signatures of the officer(s) executing this Agreement and any certificate or document to be delivered pursuant hereto, Recap Co together with evidence of the incumbency of such Secretary, and (v) a recent good standing certificate regarding the Company from the office of the Secretary of State of Cayman Islands and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered jurisdiction in which the Company is qualified to Buyer the Investors' Agreementdo business.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 (f) Buyer shall have received an opinion audited Financial Statements prepared in accordance with US GAAP and audited by a PCAOB registered audit firm.
(g) Buyer shall have received from the Beneficial Holders certificates representing the Shares, duly endorsed in blank by the applicable Beneficial Holder, or accompanied by stock powers duly executed in blank by the applicable Beneficial Holder, with all necessary transfer Tax and other revenue stamps, acquired at such Beneficial Holder’s expense, affixed.
(h) Buyer shall be fully satisfied, in its sole discretion which shall be exercised in good faith, with the results of counsel for Seller Parentits and its representatives’ review of the Business, Recap Co, Recap Subco the Shares and the Sellers, dated the date Company and its Subsidiaries (including any review of the Closingcapitalization, assets, processes, systems, financial condition, and prospects of the Business and the Company and its Subsidiaries), provided that no such review shall affect any representation or warranty of the Company or any Beneficial Holders given hereunder or in any instrument related to the transactions contemplated hereby.
(i) Buyer shall have received copies of all Company Consents (including the consents of the landlords under the Officer Leases), in form and substance reasonably satisfactory to Buyer, and no such Company Consent shall have been revoked.
(j) The Company shall have delivered to Buyer’s satisfaction updated Schedules to this Agreement as of a date within 3 Business Days of the Closing Date and all such updated schedules shall be true, correct and complete as of the date with respect thereto set forth in the respective representation and warranty.
Appears in 1 contract
Sources: Stock Purchase Agreement (Union Bridge Holdings Ltd.)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent the Company contained in this Agreement Article III, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect or words of similar import, shall be true and correct on and in all respects as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all respects as of such that specified date), and (ii) to except where the extent that any inaccuracies in failure of such representations and warrantieswarranties to be true and correct would not, individually or in the aggregate, have not had, and would not or reasonably be expected to have, have a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller (b) the Company shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them it prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectDate.
6.2.3 (c) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of the Company, that each of the conditions set forth in (a) and (b) have been satisfied.
(d) Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by Secretary or an officer of Seller Parent, to the effect that each Assistant Secretary (or equivalent officer) of the representations Company certifying (i) that attached thereto are true and warranties complete copies of Seller Parent contained in all resolutions adopted by the Company Board authorizing the execution, delivery and performance of this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (orset forth herein, as applicableincluding, the taking but not limited to, election of the indicated action Proxy Nominees, and that all such resolutions are in connection with full force and effect and are all the
(e) The Company shall have delivered, or caused to be delivered, to Buyer stock certificates evidencing the transactions contemplated by this Agreement Shares, free and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 clear of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to BuyerEncumbrances.
6.2.6 On the Closing Date, Seller Parent (f) The Company shall have delivered to Buyer an executed Registration Rights Agreement, substantially in the form attached hereto as Exhibit A.
(g) The Company shall have taken such actions so that the Proxy Nominees shall have been appointed to the Post-Closing Board, all in accordance with the organizational documents of the following:Company and in compliance with all applicable Laws, including the Securities Act and the Exchange Act.
(h) Buyer shall have received from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.C., counsel to the Company, an opinion dated as of the Closing Date substantially in the form attached hereto as Exhibit D.
(i) stock certificates representing The Company Board shall have adopted the Purchased Shares. Each such certificate evidencing Amendment to Bylaws of the Purchased Shares shall Company substantially in the form attached hereto as Exhibit E to be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;effective at Closing (the “Bylaw Amendment”).
(iij) The issued shares of Common Stock remaining listed for trading on the NYSE MKT at all stock certificates, minute books, stock books, ledgers times from the date of this Agreement and registers, corporate seals and other corporate records relating up to the organization, ownership and maintenance date of Recap Subco and each Recap Subsidiary which are not located at Recap Subco fulfillment or any Recap Subsidiary in Wilmington, Massachusetts or at waiver (the principal place of business of Recap Subco or any Recap Subsidiary;
(iii“Fulfillment Date”) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States last in time to be fulfilled of America the Closing Conditions in this Article VI (other than this condition), save for:
A. any suspension or other appropriate certificates in those jurisdictions that do suspensions not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) exceeding 15 trading days of the Closing DateNYSE MKT in aggregate in the preceding 12 months for whatever cause; or
B. any suspension in connection with the clearance of any public announcements or circulars in connection with this Agreement or the transactions contemplated hereunder; and
(v) a true and correct copy C. no written notification being received on or before the Fulfilment Date from NYSE MKT to the effect that the trading of the certificate Common Stock will or may be withdrawn or objected to as a result of incorporation Closing or articles in connection with the terms of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' this Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: Stock Issuance and Purchase Agreement (Uqm Technologies Inc)
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction (fulfillment or waiver in writing by Buyer) ’s waiver, at or prior to the Closing Closing, of each of the following conditions:
6.2.1 Each representation (a) The representations and warranty warranties of Seller Parent contained in this Agreement ARTICLE III shall be true and correct on and in all material respects as of the Closing Date, Date with the same force and effect as though made at and as of such date (except those representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any such representation or warranty is made address matters only as of a specified date, in which case such representation or warranty shall have been be true and correct in all respects as of such that specified date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect).
6.2.2 Seller Parent, Recap Subco and each (b) Seller shall have duly performed and complied in all obligations and material respects with all agreements, and complied with all covenants and conditions, contained in conditions required by this Agreement to be performed or complied with by each of them it prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse EffectDate.
6.2.3 (c) Seller shall have delivered to Buyer a good standing certificate (or its equivalent) for each Target and Acquired Subsidiary from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which such Target or Acquired Subsidiary is organized.
(d) Seller shall have delivered, or caused to be delivered, to Buyer stock powers or other instruments of transfer reasonably requested by B▇▇▇▇ duly executed in favor of B▇▇▇▇ along with the following a duly executed agreements:
(i) Post Closing Funds Management Agreement;
(ii) Post Closing Assignment Agreement;
(iii) Transition Services Agreement; and
(iv) Post Closing Covenant Agreement.
(e) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 6.02(a) and Section 6.02(b) have been satisfied.
(f) B▇▇▇▇ shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer Secretary (or equivalent officer) of Seller Parent, to certifying that attached thereto are true and complete copies of all resolutions adopted by the effect that each board of the representations and warranties directors of Seller Parent contained in authorizing the execution, delivery and performance of this Agreement is true and correct on the Closing Date as if made on such Date, except as set forth in the Update, and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by Buyer shall have tendered their resignations effective as of the Closing Date.
6.2.5 Buyer shall have received evidence satisfactory to Buyer of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement hereby, and that all such resolutions are in full force and effect and are all the Internal Reorganization under (or, as applicable, the taking of the indicated action resolutions adopted in connection with the transactions contemplated by hereby.
(g) B▇▇▇▇ shall have received a certificate of the Secretary (or equivalent officer) of Seller certifying the names and signatures of the officers of Seller authorized to sign this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall documents to be in form and substance reasonably satisfactory to Buyerdelivered hereunder.
6.2.6 On the Closing Date, (h) Seller Parent shall have has delivered to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers a duly executed in blankSportsHub PA, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the LLC Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parent.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement hereby are subject to the satisfaction fulfillment prior to or at Closing of the following conditions, unless waived by Buyer in writing:
(i) All of the covenants and obligations that Sellers are required to perform or waiver in writing by Buyer) to comply with pursuant to this Agreement at or prior to the Closing of (considered collectively) and each of the following conditions:
6.2.1 Each representation those covenants and warranty obligations (considered individually) shall have been duly performed and complied with in all material respects, (ii) each of Seller Parent Sellers' representations and warranties contained in this Agreement shall be true and correct on and as of the Closing Datein all material respects (ignoring, with the same force and for this purpose, any materiality or material adverse effect as though such representations and warranties had been made on and as of the Closing Date, except (i) qualifications to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, and (ii) to the extent that any inaccuracies in such representations and warranties, individually or in ) as of the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.2 Seller Parent, Recap Subco and each Seller shall have performed all obligations and agreements, and complied with all covenants and conditions, contained in date of this Agreement to be performed or complied with by each and as of them prior to or on the Closing Date except to the extent that any breaches of such obligations, agreements, covenants and conditions, individually or in the aggregate, have not had, and would not reasonably be expected to have, a CRL Business Material Adverse Effect.
6.2.3 Buyer shall have received a certificate of Seller Parent, dated the Closing Date and executed by an officer of Seller Parent, to the effect that each of the representations and warranties of Seller Parent contained in this Agreement is true and correct on the Closing Date as if made on such Date, the Closing Date (except as set forth in the Updateto any representation or warranty which specifically relates to an earlier date), and that the Update is true and correct.
6.2.4 The Affiliates of Parent, other than the CRL Business employees, who are directors and officers of Recap Subco and the Recap Subsidiaries and who have been requested to resign by (iii) Buyer shall have tendered their resignations effective received a certificate signed by the Sellers to the effect that the foregoing conditions have been satisfied. Compliance with covenants and obligations and accuracy of representations and warranties shall be determined without regard to supplements or amendments to Schedules made pursuant to Section 5.9.
(b) The approvals and consents listed on SCHEDULE 6.3 shall have been received or deemed received in each case without any conditions, restrictions or limitations.
(c) All of the Real Property Leases used in the Business and in the name of INPOP shall have been transferred to the Company.
(d) All of the Material Contracts are in full force and effect as of the Closing Date.
6.2.5 (e) There shall not have been any distributions of any kind from the Company to any Person from May 31, 2002 through the Closing Date, provided, however, that (i) on the Closing Date, and upon the terms and subject to the conditions of this Agreement, Sellers may cause the Company to make the Cash Distribution from Available Cash, and (ii) prior to the Closing Date, the Sellers may cause the Company to make a distribution to Jeffory Moseley of the Company's equity interest in INPOP, representi▇▇ ▇▇▇ ▇▇▇▇▇▇▇'s initial investment of $100,000.00 in INPOP.
(f) Magnificat Music, L.L.C. is a wholly owned subsidiary of the Company as of the Closing Date.
(g) Carmen Moseley and the Jeff and Carmen Moseley Charitable Remainder U▇▇▇▇▇▇▇ ▇▇▇▇ ▇xecuted a▇▇ ▇elive▇▇▇, ▇▇▇▇▇▇▇▇ to Section 2.4(b)(vii) of this Agreement, releases (the "Distribution Releases") in which they have (i) consented to the Cash Distribution being distributed exclusively to Jeffory Moseley on the Closing Date, (ii) absolutely, unconditionally ▇▇▇ ▇▇▇▇▇▇▇▇▇▇y released and forever discharged the Company, its subsidiaries, Buyer, and each of their Affiliates and respective past, present and future officers, directors, employees, agents, representatives, stockholders, successors EXECUTION COPY and assigns from and against any and all actions, causes of action, claims, demands, obligations, contracts, agreements, debts, liabilities, and damages whatsoever relating to any and all rights to any distributions made by the Company, and (iii) waived any and all provisions in the Company's Articles of Organization and Operating Agreement relating to any distributions made by the Company.
(h) There shall not have been any Sellers Material Adverse Effect with respect to the Company, its subsidiaries or their assets between the date hereof and the Closing Date, and Buyer shall have received evidence satisfactory to Buyer a certificate dated as of receipt of the consents or approvals to the consummation of the transactions contemplated by this Agreement and the Internal Reorganization under (or, as applicable, the taking of the indicated action in connection with the transactions contemplated by this Agreement and the Internal Reorganization with respect to) the contracts, agreements, leases, other instruments, licenses and other items which have been designated with an asterisk in Schedule 3.4 of the Disclosure Schedule, which consents, approvals and actions shall be in form and substance reasonably satisfactory to Buyer.
6.2.6 On the Closing Date, Seller Parent shall have delivered signed by Sellers to Buyer all of the following:
(i) stock certificates representing the Purchased Shares. Each such certificate evidencing the Purchased Shares shall be duly endorsed in blank, or be accompanied by stock transfer powers duly executed in blank, and shall be accompanied by all requisite documentary or stock transfer taxes affixed thereto and canceled;
(ii) all stock certificates, minute books, stock books, ledgers and registers, corporate seals and other corporate records relating to the organization, ownership and maintenance of Recap Subco and each Recap Subsidiary which are not located at Recap Subco or any Recap Subsidiary in Wilmington, Massachusetts or at the principal place of business of Recap Subco or any Recap Subsidiary;
(iii) original or copies of consents, filings, authorizations, approvals and other actions described in Sections 5.5.5, 6.1.1(b) or 6.2.5;
(iv) certificates as to the valid existence and good standing of Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America (or other appropriate certificates in those jurisdictions that do not issue such good standing certificates) from the Secretary of State or other appropriate Governmental Entity of each of such Person's respective jurisdiction of incorporation, organization or formation, as the case may be, dated as of a date within thirty (30) days of the Closing Date; and
(v) a true and correct copy of the certificate of incorporation or articles of organization, as the case may be, by-laws or other organizational documents of each of Recap Co, Recap Subco and each Recap Subsidiary which is organized under the Laws of the United States of America, certified as true and correct by the Secretary or Assistant Secretary of Seller Parenteffect.
6.2.7 Seller Parent, Recap Co and each other stockholder of Recap Co (other than Buyer) shall have executed and delivered to Buyer the Investors' Agreement.
6.2.8 Buyer, Recap Co and Recap Subco shall have received debt and equity proceeds in the amounts and on the terms and conditions set forth in the Commitment Letters or such other terms and conditions satisfactory to Buyer.
6.2.9 Buyer shall have received an opinion of counsel for Seller Parent, Recap Co, Recap Subco and the Sellers, dated the date of the Closing, in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Sources: LLC Interest Purchase Agreement (Integrity Media Inc)