Common use of Conditions to the Obligations of Buyer to Effect the Transactions Contemplated Hereby Clause in Contracts

Conditions to the Obligations of Buyer to Effect the Transactions Contemplated Hereby. The obligations of Buyer to effect the transactions contemplated hereby shall be further subject to the fulfillment at or prior to 22 - 70 - the Closing of each of the following conditions, any one or more of which may be waived in whole or in part by Buyer in writing: (a) Principals and Sellers shall have performed and complied in all material respects with all agreements, obligations, conditions and covenants contained in this Agreement and the Stock Purchase Agreement required to be performed and complied with by them at or prior to the Closing and all representations and warranties of Principals and Sellers set forth in this Agreement and the Stock Purchase Agreement shall be true and correct in all material respects as of the date of this Agreement and as amended by any Disclosure Supplements as of the Closing Date (as if the Closing Date was the date of this Agreement), and Buyer shall have received a certificate to that effect signed by Principals, in the form attached hereto as Exhibits D, together with such other documents, instruments and writings required to be delivered by Principals and Sellers or by the Company at or prior to the Closing pursuant to this Agreement and the Stock Purchase Agreement or otherwise required in connection herewith or therewith, provided, however, that if the Disclosure Supplements reveal a material change from the Schedules attached hereto at the date hereof that is unacceptable to Buyer, Buyer shall not be obligated to effect the transactions contemplated hereby. The immediately foregoing proviso, however, shall not apply to changes in the Disclosure Supplements regarding the matters set forth in Schedule 5.03(a) of the Disclosure Schedule, as to which changes Buyer shall not be relieved from its obligations to effect the transactions contemplated hereby. (b) Principals shall have delivered to Buyer (i) copies of the Company's Articles of Incorporation including all amendments thereto certified by the Secretary of State of the State of Minnesota, (ii) a certificate from the Secretary of State to the effect that the Company is in good standing and listing all charter documents of the Company on file, (iii) a certificate from the Secretary of State or other appropriate official in each state in which the Company is qualified to do business to the effect that the Company is in good standing in such state and (iv) certificates as to the tax status of the Company in the State of Minnesota and each state in which the Company is qualified to do business. (c) Prior to the Closing Date, there shall be no material adverse change in the assets or liabilities, the business or condition, financial or otherwise, or the results of operations of the Company, from February 28, 1998 and Principals shall have delivered to Buyer the certificate in the form attached hereto as Exhibit D, dated the Closing Date, to such effect; provided, however, that this Section 5.03(c) shall not apply to, and no condition to Closing or right of Buyer to elect not to effect the transactions contemplated herein shall be created, as a result of any action or occurrence contemplated by Schedule 5.03(a) of the Disclosure Schedule. (d) No action or proceedings which have a reasonable likelihood of success shall have been instituted or, to the knowledge of any Principal, threatened by any governmental body or authority to restrain or prohibit any of the transactions contemplated hereby or by the Stock Purchase Agreement. (e) Each party hereto shall have received all material consents, waivers, approvals, licenses or other authorizations required from any governmental or non-governmental entity for the execution, delivery and performance of this Agreement and the Stock Purchase Agreement by the parties hereto and thereto. (f) Buyer shall have received an opinion from Faegre & ▇▇▇▇▇▇, LLP, counsel to Principals, dated the Closing Date, to the effect set forth in Exhibit E hereto. (g) No injunction or other court order requiring that any part of the business or assets of the Company be held separate or divested or that any business or assets of Buyer or any affiliate of Buyer be divested, or imposing or involving any conditions on Buyer or its affiliates or the Company, which could be reasonably expected to have a material adverse effect on the assets, liabilities, business, financial condition, prospects or results of operations of either Buyer or any affiliate of Buyer on the one hand, or the Company on the other hand, shall be in effect and no proceedings shall be pending by or before, or threatened in writing by or before, any governmental body or court of competent jurisdiction with respect thereto. (h) The Company shall not have taken any of the actions set forth in Section 4.01(a) - (o) to the extent such actions were not permitted under Section 4.01 and had, individually or in the aggregate, a material adverse effect on the assets, liabilities, business, results of operations or financial condition of the Company, taken as a whole. (i) Buyer shall have received satisfactory evidence of the resignation as of the time of Closing of such of the present officers (in their capacity as corporate officers only) of the Company (other than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇) as Buyer may request at least 3 business days prior to Closing. (j) Other than as disclosed in the Disclosure Schedule, there shall not be in effect at the Closing Date any contractual provisions restricting the ability of the Company or any affiliate thereof to conduct any business or compete with any person or restricting the area in which it may conduct any business. (k) Buyer and its counsel shall have approved (which approval shall not be unreasonably withheld) all documents and instruments to be delivered at the Closing or otherwise in connection with the transactions contemplated by this Agreement and the Stock Purchase Agreement. (l) Buyer shall have received the 1997 Audited Financial Statements and they shall not show a material adverse change in the assets or liabilities, the business or condition, financial or otherwise, or the results of operations of the Company when compared to the Unaudited Financial Statements; provided, however, that this Section 5.03(l) shall not apply to, and no condition to Closing or right of Buyer to elect not to effect the transactions contemplated herein shall be created, as a result of any such action or occurrence contemplated by Schedule 5.03(a). 24 - 72 -

Appears in 1 contract

Sources: Stock Acquisition Agreement (Data Transmission Network Corp)

Conditions to the Obligations of Buyer to Effect the Transactions Contemplated Hereby. The obligations of Buyer to effect the transactions any transaction contemplated hereby shall be further subject to the fulfillment at or prior to 22 - 70 - the Closing of each Date (subject to Article VIII hereof) of the following conditions, any one or more of which may be waived in whole or in part by Buyer in writingBuyer: (a) Principals and Sellers shall have performed and complied in all material respects with all agreements, obligations, conditions and covenants contained in this Agreement and the Stock Purchase Agreement required to be performed and complied with by them at or prior to the Closing and all All representations and warranties of Principals and Sellers set forth Seller or the Shareholders contained in this Agreement and the Stock Purchase Agreement shall be true and correct in all material respects as of the date of this Agreement and Closing as amended by any Disclosure Supplements though made as of the Closing Date such time (except as if the Closing Date was the date of otherwise expressly contemplated by this Agreement), . Seller shall have performed and complied in all material respects with all covenants and agreements contained in this Agreement required to be performed and complied with by it at or prior to Closing. Buyer shall have received a certificate to that effect the matters set forth in this subparagraph (a) signed on behalf of each Seller and each Shareholder by Principalsits duly authorized officer. (b) All required consents from third parties and governmental authorities to permit the transfer of the Purchased Assets, in the form attached hereto as Exhibits Dassumption of the Contracts and the Lease, together with such other documents, instruments and writings the operation of the Business by Buyer shall have been obtained. (c) All documents required hereunder to be have been delivered by Principals Seller or the Shareholders to Buyer, and Sellers all actions required hereunder to have been taken by Seller or by the Company Shareholders, at or prior to the Closing pursuant to this Agreement and the Stock Purchase Agreement or otherwise required in connection herewith or therewith, provided, however, that if the Disclosure Supplements reveal a material change from the Schedules attached hereto at the date hereof that is unacceptable to Buyer, Buyer shall not be obligated to effect the transactions contemplated hereby. The immediately foregoing proviso, howeverDate, shall not apply to changes in the Disclosure Supplements regarding the matters set forth in Schedule 5.03(a) of the Disclosure Schedule, as to which changes Buyer shall not be relieved from its obligations to effect the transactions contemplated hereby. (b) Principals shall have been delivered to Buyer (i) copies of the Company's Articles of Incorporation including all amendments thereto certified by the Secretary of State of the State of Minnesota, (ii) a certificate from the Secretary of State to the effect that the Company is in good standing and listing all charter documents of the Company on file, (iii) a certificate from the Secretary of State or other appropriate official in each state in which the Company is qualified to do business to the effect that the Company is in good standing in such state and (iv) certificates as to the tax status of the Company in the State of Minnesota and each state in which the Company is qualified to do business. (c) Prior to the Closing Date, there shall be no material adverse change in the assets or liabilities, the business or condition, financial or otherwise, or the results of operations of the Company, from February 28, 1998 and Principals shall have delivered to Buyer the certificate in the form attached hereto as Exhibit D, dated the Closing Date, to such effect; provided, however, that this Section 5.03(c) shall not apply to, and no condition to Closing or right of Buyer to elect not to effect the transactions contemplated herein shall be created, as a result of any action or occurrence contemplated by Schedule 5.03(a) of the Disclosure Scheduletaken. (d) No action or proceedings which have a reasonable likelihood of success Buyer shall have been instituted orreceived an opinion from Seller's legal counsel reasonably satisfactory to Buyer, dated as of the Closing Date and opining to the knowledge of any Principal, threatened by any governmental body or authority to restrain or prohibit any of the transactions contemplated hereby or by the Stock Purchase Agreementmatters listed on Exhibit C attached hereto. (e) Each party hereto Buyer shall have received all material consents, waivers, approvals, licenses from Seller certificates executed by the Secretary or other authorizations required from any governmental or non-governmental entity for an Assistant Secretary of Seller certifying and attaching copies of the following: (i) resolutions of the Board of Directors of Seller authorizing the execution, delivery and performance of this Agreement and all instruments and documents to be delivered in connection herewith and the Stock Purchase Agreement transactions contemplated hereby by Seller; (ii) Articles of Incorporation of Seller recently certified by the parties hereto North Carolina Secretary of State and theretoBylaws of Seller; (iii) the incumbency and signatures of any of Seller's officers who will execute or have executed documents in connection with this Agreement; (iv) a Certificate of Existence of Seller issued as of a recent date by the North Carolina Secretary of State. Such certificate shall further certify that Seller's Articles of Incorporation have not been amended since their certification by such Secretary of State and that nothing has occurred since the date of issuance of the Certificate of Existence that would adversely affect Seller's corporate existence. (f) Buyer Seller shall have received an opinion from Faegre & ▇▇▇▇▇▇, LLP, counsel delivered to Principals, dated the Closing Date, to the effect set forth in Exhibit E heretoBuyer all financial statements required by Section 5.2 hereof. (g) No injunction or other court order requiring that any part The amount of the business or assets of the Company debt to be held separate or divested or that any business or assets of paid by Buyer or any affiliate of Buyer be divested, or imposing or involving any conditions upon Closing as described on Buyer or its affiliates or the Company, which could be reasonably expected to have a material adverse effect on the assets, liabilities, business, financial condition, prospects or results of operations of either Buyer or any affiliate of Buyer on the one hand, or the Company on the other hand, Schedule 1.8 shall be in effect and no proceedings shall be pending by or before, or threatened in writing by or before, any governmental body or court of competent jurisdiction with respect theretonot exceed $9,000,000. (h) The Company amount of Stockholders' Equity of Seller, as determined from the most recent balance sheet of Seller provided under Section 5.2 as of Closing, shall not have taken any of the actions set forth in Section 4.01(a) - (o) to the extent such actions were not permitted under Section 4.01 and had, individually or in the aggregate, a material adverse effect on the assets, liabilities, business, results of operations or financial condition of the Company, taken as a wholebe less than $5,500,000. (i) Buyer shall have received satisfactory evidence completed its due diligence review of Seller and the resignation as of the time of Closing of such of the present officers (in their capacity as corporate officers only) of the Company (other than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇) as Buyer may request at least 3 business days prior to Closing. (j) Other than as disclosed in the Disclosure Schedule, there shall not be in effect at the Closing Date any contractual provisions restricting the ability of the Company or any affiliate thereof to conduct any business or compete with any person or restricting the area in which it may conduct any business. (k) Buyer and its counsel shall have approved Business (which approval shall not be unreasonably withheld) all documents Buyer agrees to complete by March 20, 1998), and instruments to be delivered at the Closing or otherwise in connection with the transactions contemplated by this Agreement and the Stock Purchase Agreement. (l) Buyer shall have received the 1997 Audited Financial Statements and they shall not show a material adverse change in the assets or liabilities, the business or condition, financial or otherwise, or the results of operations of the Company when compared such review shall have been satisfactory to the Unaudited Financial Statements; provided, however, that this Section 5.03(l) shall not apply to, and no condition to Closing or right of Buyer to elect not to effect the transactions contemplated herein shall be created, as a result of any such action or occurrence contemplated by Schedule 5.03(a). 24 - 72 -in its discretion.

Appears in 1 contract

Sources: Asset Purchase Agreement (Culp Inc)

Conditions to the Obligations of Buyer to Effect the Transactions Contemplated Hereby. The obligations of Buyer to effect the transactions any transaction contemplated hereby shall be further subject to the fulfillment at or prior to 22 - 70 - the Closing of each Date (subject to Article X hereof) of the following conditions, any one or more of which may be waived in whole or in part by Buyer in writingBuyer: (a) Principals Seller shall have delivered and Sellers executed: (i) the general warranty deeds to the Purchased Realty; (ii) the Buyer Leases and memorandum thereof (in recordable form); (iii) the Escrow Agreement; (iv) the Sublease Agreement; (v) the Assumption Agreement; and (vi) all bills of sale, certificates of title, odometer affidavits, assignments of leases and agreements and other instruments necessary to transfer title to the Purchased Assets to Buyer in accordance with this Agreement. (b) All representations and warranties of Seller contained in this Agreement shall be true and correct as of the Closing Date as though made as of such date. Seller shall have performed and complied in all material respects with all agreements, obligations, conditions covenants and covenants agreements contained in this Agreement and the Stock Purchase Agreement required to be performed and complied with by them at or prior to the Closing and all representations and warranties of Principals and Sellers set forth in this Agreement and the Stock Purchase Agreement shall be true and correct in all material respects as of the date of this Agreement and as amended by any Disclosure Supplements as of the Closing Date (as if the Closing Date was the date of this Agreement), and Date. Buyer shall have received a certificate to the matters set forth in this subparagraph (a) signed on behalf of Seller by its President or a Vice President. (c) Consents from third parties and Governmental Authorities as shall be required and that effect signed by Principals, are listed in the form attached hereto as Exhibits D, together with such other documents, instruments and writings Schedule 4.3 shall have been obtained. (d) All documents required to be have been delivered by Principals Seller to Buyer, and Sellers or all actions required to have been taken by the Company Seller, at or prior to the Closing pursuant to this Agreement and the Stock Purchase Agreement or otherwise required in connection herewith or therewith, provided, however, that if the Disclosure Supplements reveal a material change from the Schedules attached hereto at the date hereof that is unacceptable to Buyer, Buyer shall not be obligated to effect the transactions contemplated hereby. The immediately foregoing proviso, however, shall not apply to changes in the Disclosure Supplements regarding the matters set forth in Schedule 5.03(a) of the Disclosure Schedule, as to which changes Buyer shall not be relieved from its obligations to effect the transactions contemplated hereby. (b) Principals shall have delivered to Buyer (i) copies of the Company's Articles of Incorporation including all amendments thereto certified by the Secretary of State of the State of Minnesota, (ii) a certificate from the Secretary of State to the effect that the Company is in good standing and listing all charter documents of the Company on file, (iii) a certificate from the Secretary of State or other appropriate official in each state in which the Company is qualified to do business to the effect that the Company is in good standing in such state and (iv) certificates as to the tax status of the Company in the State of Minnesota and each state in which the Company is qualified to do business. (c) Prior to the Closing Date, there shall be no material adverse change in the assets or liabilities, the business or condition, financial or otherwise, or the results of operations of the Company, from February 28, 1998 and Principals shall have delivered to Buyer the certificate in the form attached hereto as Exhibit D, dated the Closing Date, to such effect; provided, however, that this Section 5.03(c) shall not apply to, and no condition to Closing or right of Buyer to elect not to effect the transactions contemplated herein shall be created, as a result of any action or occurrence contemplated by Schedule 5.03(a) of the Disclosure Schedule. (d) No action or proceedings which have a reasonable likelihood of success shall have been instituted or, to the knowledge of any Principal, threatened by any governmental body delivered or authority to restrain or prohibit any of the transactions contemplated hereby or by the Stock Purchase Agreementtaken. (e) Each party hereto shall have received all material consents, waivers, approvals, licenses or other authorizations required from any governmental or non-governmental entity for the execution, delivery and performance of this Agreement and the Stock Purchase Agreement by the parties hereto and thereto. (f) Buyer shall have received an opinion from Faegre & ▇▇▇▇▇▇, LLP, counsel to Principals, dated the Closing Date, to the effect set forth in Exhibit E hereto. (g) No injunction or other court order requiring that any part of the business or assets of the Company be held separate or divested or that any business or assets of Buyer or any affiliate of Buyer be divested, or imposing or involving any conditions on Buyer or its affiliates or the Company, which could be reasonably expected to have a material adverse effect on the assets, liabilities, business, financial condition, prospects or results of operations of either Buyer or any affiliate of Buyer on the one hand, or the Company on the other hand, shall be in effect and no proceedings shall be pending by or before, or threatened in writing by or before, any governmental body or court of competent jurisdiction with respect thereto. (h) The Company shall not have taken any of the actions set forth in Section 4.01(a) - (o) to the extent such actions were not permitted under Section 4.01 and had, individually or in the aggregate, a material adverse effect on the assets, liabilities, business, results of operations or financial condition of the Company, taken as a whole. (i) Buyer shall have received satisfactory evidence of the resignation as of the time of Closing of such of the present officers (in their capacity as corporate officers only) of the Company (other than ▇▇▇▇N▇▇▇ ▇. ▇▇▇▇▇▇▇▇, dated as of the Closing Date in substantially the form attached hereto as Exhibit F. Exhibit 2.4 (continued) (f) Buyer shall have received from Seller copies, certified by its respective Secretary or an Assistant Secretary, of resolutions adopted on behalf of Seller authorizing the execution, delivery and performance of this Agreement and all instruments and documents to be delivered in connection herewith and the transactions contemplated hereby. (g) As of the Closing Date, Buyer shall have received from Seller the following documents: (i) A long-form certificate of good standing of Seller's corporate status from its jurisdiction of incorporation, and certificates of qualification to do business as a foreign corporation for Seller from such jurisdictions where Seller's activities in the Business would require it to be so qualified; (ii) A true and complete copy of Seller's articles of incorporation and all amendments thereto certified by the jurisdiction of incorporation; (iii) A true and complete copy of Seller's bylaws certified by its respective Secretary; (iv) A certificate from Seller's Secretary that its respective articles of incorporation have not been amended since the date of the certificate described in subsection (ii) above and that nothing has occurred since the date of issuance of the good standing certificate specified in subsection (i) above that would adversely affect Seller's corporate good standing; and (v) A certificate from Seller's Secretary attesting to the incumbency and signatures of any of Seller's officers who will execute documents at the Closing or who have executed the Agreement. (h) Buyer shall have completed a review of the Business and shall not have given notice to Seller that Buyer has determined not to proceed with the consummation of the transactions contemplated hereby because a representation or warranty of Seller set forth herein (without regard to any qualification set forth therein with respect to Seller's knowledge) is not true, accurate or complete. (i) To the extent deemed necessary by Buyer, Buyer shall have received environmental assessment and audit Exhibit 2.4 (continued) reports, prepared at the expense of Buyer, for each site listed on Schedule 4.13, by a qualified independent environmental consultant acceptable to Buyer, and such other analyses, reports and examinations as Buyer may request shall request, at least 3 business days prior its expense, and Buyer shall be satisfied on the basis of such studies, in its sole, absolute and unqualified discretion, that no material environmental problems exist with respect to Closingthe Business or any of the Purchased Assets. Buyer shall deliver copies of such reports to Seller. (j) Other than as disclosed Buyer shall have received at its own expense policies of title insurance with respect to the Realty (excluding any Leased Real Property), along with as-built surveys of such Realty, such insurance policies insuring that title to all such properties is in the Disclosure Schedule, there shall not be in effect at the Closing Date any contractual provisions restricting the ability of the Company or any affiliate thereof to conduct any business or compete accordance with any person or restricting the area in which it may conduct any businessthis Agreement. (k) Buyer Pursuant to the Lease Agreement dated as of December 1, 1984 between Seller and its counsel City of Tupelo, Mississippi, Seller shall have approved repurchased the "Project" (which approval as defined in such Lease Agreement), and shall not be unreasonably withheld) hold such Project free and clear of all documents liens and instruments to be delivered at the Closing or otherwise in connection with the transactions contemplated by this Agreement and the Stock Purchase Agreementencumbrances. (l) Buyer shall have received such other documents, opinions and certificates that it has reasonably requested in connection with the 1997 Audited Financial Statements conveyance of the Purchased Assets and they the consummation of the other transactions contemplated hereby. (m) No events or conditions shall not show a material adverse change in have occurred with respect to the assets or liabilities, the business or condition, financial or otherwise, Purchased Assets or the results Business or any of operations Seller's relationships with customers or suppliers of the Company when compared Business that have or would be likely to have a Material Adverse Effect on the Unaudited Financial Statements; provided, however, that this Section 5.03(l) shall not apply to, and no condition to Closing or right of Buyer to elect not to effect the transactions contemplated herein shall be created, as a result of any such action or occurrence contemplated by Schedule 5.03(a). 24 - 72 -Business.

Appears in 1 contract

Sources: Acquisition Agreement (Cone Mills Corp)

Conditions to the Obligations of Buyer to Effect the Transactions Contemplated Hereby. The obligations of Buyer to effect the transactions any transaction contemplated hereby shall be further subject to the fulfillment at or prior to 22 - 70 - the Closing of each Date of the following conditions, any one or more of which may be waived in whole or in part by Buyer in writingBuyer: (a) Principals and Sellers Seller shall have performed executed and complied in all material respects with all agreements, obligations, conditions and covenants contained in this Agreement and delivered the Stock Purchase Agreement documents required to be performed delivered pursuant to SECTION 3.2; All information required to be furnished or delivered by Seller pursuant to this Agreement shall have been furnished or delivered as of the date hereof and complied with by them at or prior to as of the Closing and all Date, as required hereunder; the representations and warranties of Principals and Sellers set forth made by Seller in this Agreement and the Stock Purchase Agreement ARTICLE IV shall be true and correct in all material respects on and as of the date of this Agreement Closing Date with the same force and effect as amended by any Disclosure Supplements though such representations and warranties had been made on and as of the Closing Date (except that such representations and warranties may be untrue or incorrect as if a result of actions or transactions expressly permitted by this Agreement or actions or transactions of Seller made with the prior written consent of Buyer); and Buyer shall have received a certificate dated as of the Closing Date was executed by an authorized officer of Seller to such effect; (c) Seller shall have duly performed in all material respects all of the date of covenants, agreements, and conditions contained in this Agreement)Agreement respectively to be performed by them on or prior to the Closing Date, and Buyer shall have received a certificate certificate, dated as of the Closing Date, executed by an authorized officer of Seller to that effect signed by Principals, in the form attached hereto as Exhibits D, together with such other documents, instruments and writings effect; and (d) All documents required to be have been delivered by Principals Seller to Buyer, and Sellers or all actions required to have been taken by the Company Seller, at or prior to the Closing pursuant to this Agreement and the Stock Purchase Agreement or otherwise required in connection herewith or therewith, provided, however, that if the Disclosure Supplements reveal a material change from the Schedules attached hereto at the date hereof that is unacceptable to Buyer, Buyer shall not be obligated to effect the transactions contemplated hereby. The immediately foregoing proviso, however, shall not apply to changes in the Disclosure Supplements regarding the matters set forth in Schedule 5.03(a) of the Disclosure Schedule, as to which changes Buyer shall not be relieved from its obligations to effect the transactions contemplated hereby. (b) Principals shall have delivered to Buyer (i) copies of the Company's Articles of Incorporation including all amendments thereto certified by the Secretary of State of the State of Minnesota, (ii) a certificate from the Secretary of State to the effect that the Company is in good standing and listing all charter documents of the Company on file, (iii) a certificate from the Secretary of State or other appropriate official in each state in which the Company is qualified to do business to the effect that the Company is in good standing in such state and (iv) certificates as to the tax status of the Company in the State of Minnesota and each state in which the Company is qualified to do business. (c) Prior to the Closing Date, there shall be no material adverse change in the assets or liabilities, the business or condition, financial or otherwise, or the results of operations of the Company, from February 28, 1998 and Principals shall have delivered to Buyer the certificate in the form attached hereto as Exhibit D, dated the Closing Date, to such effect; provided, however, that this Section 5.03(c) shall not apply to, and no condition to Closing or right of Buyer to elect not to effect the transactions contemplated herein shall be created, as a result of any action or occurrence contemplated by Schedule 5.03(a) of the Disclosure Schedule. (d) No action or proceedings which have a reasonable likelihood of success shall have been instituted or, to the knowledge of any Principal, threatened by any governmental body delivered or authority to restrain or prohibit any of the transactions contemplated hereby or by the Stock Purchase Agreementtaken. (e) Each party hereto shall have received all material consents, waivers, approvals, licenses or other authorizations required from any governmental or non-governmental entity for the execution, delivery and performance of this Agreement and the Stock Purchase Agreement by the parties hereto and thereto. (f) Buyer shall have received an opinion from Faegre & ▇▇▇▇▇▇, LLP, counsel to Principals, dated the Closing Date, to the effect set forth in Exhibit E hereto. (g) No injunction or other court order requiring that any part of the business or assets of the Company be held separate or divested or that any business or assets of Buyer or any affiliate of Buyer be divested, or imposing or involving any conditions on Buyer or its affiliates or the Company, which could be reasonably expected to have a material adverse effect on the assets, liabilities, business, financial condition, prospects or results of operations of either Buyer or any affiliate of Buyer on the one hand, or the Company on the other hand, shall be in effect and no proceedings shall be pending by or before, or threatened in writing by or before, any governmental body or court of competent jurisdiction with respect thereto. (h) The Company shall not have taken any of the actions set forth in Section 4.01(a) - (o) to the extent such actions were not permitted under Section 4.01 and had, individually or in the aggregate, a material adverse effect on the assets, liabilities, business, results of operations or financial condition of the Company, taken as a whole. (i) Buyer shall have received satisfactory evidence of the resignation as of the time of Closing of such of the present officers (in their capacity as corporate officers only) of the Company (other than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇) as Buyer may request at least 3 business days prior to Closing. (j) Other than as disclosed in the Disclosure Schedule, there shall not be in effect at the Closing Date any contractual provisions restricting the ability of the Company or any affiliate thereof to conduct any business or compete with any person or restricting the area in which it may conduct any business. (k) Buyer and its counsel shall have approved (which approval shall not be unreasonably withheld) all documents and instruments to be delivered at the Closing or otherwise in connection with the transactions contemplated by this Agreement and the Stock Purchase Agreement. (l) Buyer shall have received the 1997 Audited Financial Statements and they shall not show a material adverse change in the assets or liabilities, the business or condition, financial or otherwise, or the results of operations of the Company when compared to the Unaudited Financial Statements; provided, however, that this Section 5.03(l) shall not apply to, and no condition to Closing or right of Buyer to elect not to effect the transactions contemplated herein shall be created, as a result of any such action or occurrence contemplated by Schedule 5.03(a). 24 - 72 -

Appears in 1 contract

Sources: Asset Sale Agreement (Synthetic Industries Inc)

Conditions to the Obligations of Buyer to Effect the Transactions Contemplated Hereby. The obligations of Buyer to effect the transactions contemplated hereby shall be further subject to the fulfillment at or prior to 22 - 70 - the Closing of each of the following conditions, any one or more of which may be waived in whole or in part by Buyer in writing: (a) Principals and Sellers shall have performed and complied in all material respects with all agreements, obligations, conditions and covenants contained in this Agreement and the Stock Purchase Agreement required to be performed and complied with by them at or prior to the Closing and all representations and warranties of Principals and Sellers set forth in this Agreement and the Stock Purchase Agreement shall be true and correct in all material respects as of the date of this Agreement and as amended by any Disclosure Supplements as of the Closing Date (as if the Closing Date was the date of this Agreement), and Buyer shall have received a certificate certificates to that effect signed by PrincipalsSellers, in the form attached hereto as Exhibits DExhibit A, together with such other documents, instruments and writings required to be delivered by Principals and Sellers or by the Company at or prior to the Closing pursuant to this Agreement and the Stock Purchase Agreement or otherwise required in connection herewith or therewithherewith, provided, however, that if the Disclosure Supplements reveal a material change from the Schedules attached hereto at the date hereof that is unacceptable to Buyer, Buyer shall not be obligated to effect the transactions contemplated hereby. The immediately foregoing proviso, however, shall not apply to changes in the Disclosure Supplements regarding the matters set forth in Schedule 5.03(a) of the Disclosure Schedule, as to which changes Buyer shall not be relieved from its obligations to effect the transactions contemplated hereby. (b) Principals shall have delivered to Buyer (i) copies of the Company's Articles of Incorporation including all amendments thereto certified by the Secretary of State of the State of Minnesota, (ii) a certificate from the Secretary of State to the effect that the Company is in good standing and listing all charter documents of the Company on file, (iii) a certificate from the Secretary of State or other appropriate official in each state in which the Company is qualified to do business to the effect that the Company is in good standing in such state and (iv) certificates as to the tax status of the Company in the State of Minnesota and each state in which the Company is qualified to do business. (c) Prior to the Closing Date, there shall be no material adverse change in the assets or liabilities, the business or condition, financial or otherwise, or the results of operations of the Company, from February 28, 1998 and Principals shall have delivered to Buyer the certificate in the form attached hereto as Exhibit D, dated the Closing Date, to such effect; provided, however, that this Section 5.03(c) shall not apply to, and no condition to Closing or right of Buyer to elect not to effect the transactions contemplated herein shall be created, as a result of any action or occurrence contemplated by Schedule 5.03(a) of the Disclosure Schedule. (d) No action or proceedings which have a reasonable likelihood of success shall have been instituted or, to the knowledge of any PrincipalSellers, threatened by any governmental body or authority to restrain or prohibit any of the transactions contemplated hereby or by the Stock Purchase Agreementhereby. (ec) Each party hereto shall have received all material consents, waivers, approvals, licenses or other authorizations required from any governmental or non-governmental entity for the execution, delivery and performance of this Agreement and the Stock Purchase Agreement by the parties hereto and thereto. (f) Buyer shall have received an opinion from Faegre & ▇▇▇▇▇▇, LLP, counsel to Principals, dated the Closing Date, to the effect set forth in Exhibit E hereto. (gd) No injunction or other court order requiring that any part of the business or assets of the Company be held separate or divested or that any business or assets of Buyer or any affiliate of Buyer be divested, or imposing or involving any conditions on Buyer or its affiliates or the Company, which could be reasonably expected to have a material adverse effect on the assets, liabilities, business, financial condition, prospects or results of operations of either Buyer or any affiliate of Buyer on the one hand, or the Company on the other hand, shall be in effect and no proceedings shall be pending by or before, or threatened in writing by or before, any governmental body or court of competent jurisdiction with respect thereto. (h) The Company shall not have taken any of the actions set forth in Section 4.01(a) - (o) to the extent such actions were not permitted under Section 4.01 and had, individually or in the aggregate, a material adverse effect on the assets, liabilities, business, results of operations or financial condition of the Company, taken as a whole. (i) Buyer shall have received satisfactory evidence of the resignation as of the time of Closing of such of the present officers (in their capacity as corporate officers only) of the Company (other than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇) as Buyer may request at least 3 business days prior to Closing. (je) Other than as disclosed in the Disclosure Schedule, there shall not be in effect at the Closing Date any contractual provisions restricting the ability of the Company or any affiliate thereof to conduct any business or compete with any person or restricting the area in which it may conduct any business. (kf) Buyer and its counsel shall have approved (which approval shall not be unreasonably withheld) (i) the form of stock power or other instruments of transfer to be delivered to Buyer at the Closing and (ii) all other documents and instruments to be delivered at the Closing or otherwise in connection with the transactions contemplated by this Agreement and the Stock Purchase Agreement. (l) Buyer shall have received the 1997 Audited Financial Statements and they shall not show a material adverse change in the assets or liabilities, the business or condition, financial or otherwise, or the results of operations of the Company when compared to the Unaudited Financial Statements; provided, however, that this Section 5.03(l) shall not apply to, and no condition to Closing or right of Buyer to elect not to effect the transactions contemplated herein shall be created, as a result of any such action or occurrence contemplated by Schedule 5.03(a). 24 - 72 -

Appears in 1 contract

Sources: Stock Purchase Agreement (Data Transmission Network Corp)

Conditions to the Obligations of Buyer to Effect the Transactions Contemplated Hereby. The obligations of Buyer the Company to effect the transactions contemplated hereby shall be further subject to the fulfillment at or prior to 22 - 70 - the Closing of each Date of the following conditions, any one or more of which may be waived in whole or in part by Buyer in writingthe Company: (a) Principals 7.1 None of the parties hereto shall be subject on the Closing Date to any order, decree or injunction of a court of competent jurisdiction which enjoins or prohibits the consummation of the transactions contemplated by this Agreement, nor shall there be pending a suit or proceeding by any governmental authority that seeks injunctive or other relief in connection with such transactions. All consents, approvals and Sellers shall have performed waivers from third parties and complied in all material respects with all agreements, obligations, conditions governmental agencies and covenants contained in this Agreement and the Stock Purchase Agreement authorities required to be performed and complied with obtained to consummate the transactions contemplated by them this Agreement to be consummated at or prior to the Closing Date and all which, either individually or in the aggregate, if not obtained, would materially adversely affect the Business, or the Assets, shall have been obtained. 7.2 The representations and warranties of Principals and Sellers ICE set forth in this Agreement and the Stock Purchase Agreement shall be true and correct in all material respects as of the date Closing Date as though made as of such date. Merger Co shall have performed and complied in all material respects with all covenants and agreements contained in this Agreement and as amended by any Disclosure Supplements as of the Closing Date (as if the Closing Date was the date of this Agreement), and Buyer shall have received a certificate to that effect signed by Principals, in the form attached hereto as Exhibits D, together with such other documents, instruments and writings required to be delivered performed and complied with by Principals and Sellers or by the Company it at or prior to the Closing pursuant Date. 7.3 All documents required to have been delivered by ICE to the Company, and all actions required to have been taken by the Merger Co, shall have been delivered or taken. 7.4 the Company shall have received from the Merger Co and ICE copies, certified by each of their respective Secretaries, of resolutions of the respective Boards authorizing the sale of the Assets, and execution, delivery and performance by the Merger Co and ICE of this Agreement Agreement, the sale of the Assets, and the Stock Purchase Agreement or otherwise required all instruments and documents to be delivered in connection herewith or and therewith, provided, however, that if the Disclosure Supplements reveal a material change from the Schedules attached hereto at the date hereof that is unacceptable to Buyer, Buyer shall not be obligated to effect and the transactions contemplated hereby. The immediately foregoing proviso, however, shall not apply to changes in the Disclosure Supplements regarding the matters set forth in Schedule 5.03(a) of the Disclosure Schedule, as to which changes Buyer shall not be relieved from its obligations to effect the transactions contemplated herebyhereby and thereby. (b) Principals shall have delivered to Buyer (i) copies of the Company's Articles of Incorporation including all amendments thereto certified by the Secretary of State of the State of Minnesota, (ii) a certificate from the Secretary of State to the effect that the Company is in good standing and listing all charter documents of the Company on file, (iii) a certificate from the Secretary of State 7.5 On or other appropriate official in each state in which the Company is qualified to do business to the effect that the Company is in good standing in such state and (iv) certificates as to the tax status of the Company in the State of Minnesota and each state in which the Company is qualified to do business. (c) Prior prior to the Closing Date, there shall be no material adverse change in the assets or liabilities, the business or condition, financial or otherwise, or the results of operations of the Company, from February 28, 1998 and Principals ICE shall have delivered entered into theMerchant Service Provider Agreement. 7.6 On or prior to Buyer the certificate in the form attached hereto as Exhibit D, dated the Closing Date, ICE shall have entered into an Exclusive Supply Agreement with the Company. According to the provisions of such effect; providedagreement, howeverICE will agree that any POS equipment offered by them to ISOs and merchants for lease, that this Section 5.03(c) shall not apply to, will be leased from the Company and no condition the Company will agree to Closing or right of Buyer provide the same leasing terms to elect not to ICE as are currently in effect between ICE and Merger Co. The leasing agreement will also include a most favored nation pricing provision based on the transactions contemplated herein shall be created, as a result of any action or occurrence contemplated volumes and other terms committed by Schedule 5.03(a) other ISOs of the Disclosure ScheduleCompany after Closing (excluding Worldwide). ICE will pay any rebates offered to its ISOs (whether relating to leasing agreements or otherwise). (d) No action 7.7 On or proceedings which have a reasonable likelihood of success prior to the Closing Date, the Company shall have been instituted or, entered into a license agreement for the use of the software known as "LeaseManager" on terms reasonably satisfactory to the knowledge of any PrincipalCompany ("LICENSE AGREEMENT"); 7.8 On or prior to the Closing Date, threatened by any governmental body or authority to restrain or prohibit any of the transactions contemplated hereby or by the Stock Purchase Agreement. (e) Each party hereto shall have received all material consents, waivers, approvals, licenses or other authorizations required from any governmental or non-governmental entity for the execution, delivery and performance of this Agreement and the Stock Purchase Agreement by the parties hereto and thereto. (f) Buyer shall have received an opinion from Faegre & ▇▇▇▇▇▇, LLP, counsel to Principals, dated the Closing Date, to the effect set forth in Exhibit E hereto. (g) No injunction or other court order requiring that any part of the business or assets of the Company be held separate or divested or that any business or assets of Buyer or any affiliate of Buyer be divested, or imposing or involving any conditions on Buyer or its affiliates or the Company, which could be reasonably expected to have a material adverse effect on the assets, liabilities, business, financial condition, prospects or results of operations of either Buyer or any affiliate of Buyer on the one hand, or the Company on the other hand, shall be in effect and no proceedings shall be pending by or before, or threatened in writing by or before, any governmental body or court of competent jurisdiction with respect thereto. (h) The Company shall not have taken any of the actions set forth in Section 4.01(a) - (o) to the extent such actions were not permitted under Section 4.01 and had, individually or in the aggregate, a material adverse effect on the assets, liabilities, business, results of operations or financial condition of the Company, taken as a whole. (i) Buyer shall have received satisfactory evidence of the resignation as of the time of Closing of such of the present officers (in their capacity as corporate officers only) of the Company (other than ▇▇▇▇▇▇▇ will have entered into an employment agreement on terms mutually agreed by the Company and ▇▇. ▇▇▇▇▇▇▇▇) as Buyer may request at least 3 business days ▇ ("EMPLOYMENT AGREEMENT"); 7.9 On or prior to Closingthe Closing Date, ICE shall have terminated its Merchant Program Processing Agreement with First Data Merchant Services Corporation and Banccorp South (as successor to Fleet National Bank) (the "OLD PROCESSING AGREEMENT"). Simultaneously with such termination, the Company, ICE, First Data Merchant Services Corporation and Banccorp South shall have entered into Four Party Agreement. 7.10 On or prior to the Closing Date, ICE and the Company will have entered into the Sublease. 7.11 On or prior to the Closing Date, Merger Co shall have made reasonable efforts to obtain such consents or approvals, if any, with respect to Restricted Contracts. If any such consent or approval is not obtained prior to the Closing and the Company does not waive such consent or approval, such Restricted Contract shall (jat the Company's option) Other than as disclosed in be excluded from the Disclosure Schedule, there Assets and shall not be in effect assigned to the Company at the Closing Date any contractual provisions restricting the ability of the Company or any affiliate thereof to conduct any business or compete with any person or restricting the area in which it may conduct any business. (k) Buyer and its counsel shall have approved (which approval shall not be unreasonably withheld) all documents and instruments to be delivered at the Closing or otherwise in connection with the transactions contemplated by this Agreement and the Stock Purchase Agreement. (l) Buyer shall have received the 1997 Audited Financial Statements and they shall not show a material adverse change in the assets or liabilities, the business or condition, financial or otherwise, or the results of operations of the Company when compared to the Unaudited Financial StatementsClosing; provided, however, that this Section 5.03(l) shall not apply tothe Merger Co shall, and no condition upon the Company's request, make further reasonable efforts subsequent to the Closing to obtain such consent or right of Buyer approval with respect to elect not to effect the transactions contemplated herein shall be created, as a result of any such action Restricted Contract which is material to the business or occurrence contemplated by Schedule 5.03(a). 24 - 72 operations of the Merger Co. 7.12 On or prior to the Closing Date, the Company and Neos shall have executed the Amended and Restated Note payable to Neos and ICE shall have no further obligation thereunder; 7.13 No material third-party litigation or other proceedings will be threatened or pending as of the Closing relating to Merger Co, the Business and the Assets, the Agreement and any related transaction; and 7.14 the Company will have been satisfied with the results of its due diligence investigation of Merger Co, the Assets and the Business;

Appears in 1 contract

Sources: Merger Agreement (International Card Establishment Inc)

Conditions to the Obligations of Buyer to Effect the Transactions Contemplated Hereby. The obligations of Buyer to effect the transactions contemplated hereby shall be further subject to the fulfillment at or prior to 22 - 70 - the Closing of each Date of the following conditions, any one or more of which may be waived in whole or in part by Buyer in writingBuyer: (a) Principals and Sellers shall have performed and complied in all material respects with all agreements, obligations, conditions the covenants and covenants agreements contained in this Agreement and the Stock Purchase Agreement required to be performed and complied with by them at or prior to the Closing Date (including, without limitation, timely delivery of the Estimated Balance Sheet), and all the representations and warranties of Principals and Sellers set forth in this Agreement and the Stock Purchase Agreement Agree ment (without regard to any updated information provided pursuant to Section 5.08 hereof) shall be true and correct in all material respects as of the date of this Agreement Closing Date as though made at and as amended by any Disclosure Supplements as of the Closing Date (as if the Closing Date was the date of this Agreement), and Buyer shall have received a certificate to that effect signed by Principals, in the form attached hereto as Exhibits D, together with such other documents, instruments and writings required to be delivered by Principals and Sellers or by the Company at or prior to the Closing pursuant to this Agreement and the Stock Purchase Agreement or otherwise required in connection herewith or therewith, provided, however, that if the Disclosure Supplements reveal a material change from the Schedules attached hereto at the date hereof that is unacceptable to Buyer, Buyer shall not be obligated to effect the transactions contemplated hereby. The immediately foregoing proviso, however, shall not apply to changes in the Disclosure Supplements regarding the matters set forth in Schedule 5.03(a) each of the Disclosure Schedule, as to which changes Buyer shall not be relieved from its obligations to effect the transactions contemplated hereby.Sellers; (b) Principals There shall not have delivered to Buyer (i) copies been, since the date of the Company's Articles of Incorporation including all amendments thereto certified by the Secretary of State of the State of MinnesotaRecent Financial Statements, (ii) a certificate from the Secretary of State to the effect that the Company is in good standing and listing all charter documents of the Company on file, (iii) a certificate from the Secretary of State or other appropriate official in each state in which the Company is qualified to do business to the effect that the Company is in good standing in such state and (iv) certificates as to the tax status of the Company in the State of Minnesota and each state in which the Company is qualified to do business. (c) Prior to the Closing Date, there shall be no any material adverse change in the assets or liabilitiesbusiness, the business or conditionresults of operations, financial condition or otherwise, or the results of operations prospects of the Company, from February 28, 1998 and Principals shall have delivered to Buyer the certificate in the form attached hereto as Exhibit D, dated the Closing Date, to such effect; provided, however, that this Section 5.03(c) shall not apply to, and no condition to Closing or right of Buyer to elect not to effect the transactions contemplated herein shall be created, as a result of any action or occurrence contemplated by Schedule 5.03(a) of the Disclosure Schedule.; (dc) No action or proceedings which have a reasonable likelihood of success shall have been instituted orAt the Closing, to the knowledge of any Principal, threatened by any governmental body or authority to restrain or prohibit any of the transactions contemplated hereby or by the Stock Purchase Agreement. (e) Each party hereto shall have received all material consents, waivers, approvals, licenses or other authorizations required from any governmental or non-governmental entity for the execution, delivery and performance of this Agreement and the Stock Purchase Agreement by the parties hereto and thereto. (f) Buyer shall have received an opinion or opinions from Faegre ▇▇▇▇▇, McClosky, Smith, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLPP.A., counsel to Principalsfor Sellers, dated the Closing DateDate and satisfactory in form and substance to Buyer and its counsel, to the effect set forth in Exhibit E hereto.that: (gi) No injunction The Company has been incorporated under the New York Business Corporation Law and is a subsisting corporation under the laws of the State of New York and has all requisite corporate power and authority to carry on its business as now being conducted and is authorized to transact business and its status is active in the State of Florida; (ii) This Agreement and the Escrow Agreement have been duly and validly executed and delivered by each of Sellers and, assuming the Agreement and the Escrow Agreement are valid and binding obligation of Buyer, constitute a valid and binding obligations of each of Sellers, enforceable against each of Sellers in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other court order requiring that any part similar laws now or hereafter in effect relating to creditors' rights generally, and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law); (iii) Except for those approvals and consents which have already been obtained, neither execution and delivery by Sellers of this Agreement and the Escrow Agreement, the sale by Sellers of the business Common Stock pursuant to this Agreement nor the consummation of the other transactions contemplated by this Agreement and the Escrow Agreement will (A) conflict with or result in any breach of any provision of the Certificate of Incorporation or By-Laws (or other similar governing documents) of the Company, (B) require any consent, approval, authorization or permit of, or filing with or notification to, any governmental or regulatory authority other than those which have been made or obtained; (C) to the best of such counsel's knowledge after limited investigation, constitute a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, agreement or other instrument or obligation known to such counsel to which any of Sellers or the Company is a party or by which any of Sellers, the Company or any of their assets may be bound, except for such defaults (or rights of termination, cancellation or acceleration) as to which requisite waivers or consents have been obtained; (D) to the best of such counsel's knowledge after limited investigation, result in the creation of any encumbrance, security interest, equity or right of others upon any of the properties or assets of the Company be held separate under any of the terms, conditions or divested provisions of any agreement, instrument or that any business or assets of Buyer or any affiliate of Buyer be divested, or imposing or involving any conditions on Buyer obligation to which the Company or its affiliates assets may be bound or the Companyaffected; or (E) violate any order, writ, injunction, judgment or decree known to such counsel, to which could be reasonably expected to have a material adverse effect on the assets, liabilities, business, financial condition, prospects or results any of operations of either Buyer or any affiliate of Buyer on the one hand, Sellers or the Company on the other hand, shall be in effect and no proceedings shall be pending by or beforeis a party, or threatened in writing by which any of their respective assets are bound or beforeany law, statute, rule or regulation applicable to any governmental body of Sellers, the Company or court any of competent jurisdiction with respect thereto.their respective assets; (hiv) By reason of delivery of certificates for the Common Stock and duly executed stock powers as contemplated by this Agreement, Sellers have transferred, assigned and delivered to Buyer good and marketable title to such shares of Common Stock, free and clear, to the best of such counsel's knowledge after limited investigation, of any liens, encumbrances, equities and claims of whatever nature, except as provided by applicable securities laws and except as created by Buyer; (v) The Company shall not have taken any total authorized capital stock of the actions Company is as set forth in Section 4.01(a) - (o) 3.02 of this Agreement; all of the issued and outstanding shares of Common Stock of the Company are duly authorized, validly issued, fully paid and nonassessable and, other than this Agreement, to the extent best of such actions were not permitted counsel's knowledge after limited investigation, there is no outstanding subscription, obligation, option, warrant, call, right, agreement or commitment relating to the issuance, sale, delivery or transfer by the Company, or by any of Sellers (including any right of conversion or exchange under Section 4.01 any outstanding security or other instrument) of the Common Stock or other capital stock of the Company or, to the best of such counsel's knowledge after reasonable investigation, any outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any issued and hadoutstanding shares of capital stock of the Company or other rights of any kind to acquire shares of capital stock of any class of the Company; and all of the issued and outstanding shares of Common Stock are owned of record by Sellers; and (vi) Except as disclosed in Schedule 3.17 to this Agreement, individually such counsel has no knowledge after limited investigation of any claim, action, proceeding or investigation pending or threatened against or relating to the Company before any court or governmental or regulatory authority or body acting in an investigative or adjudicative capacity or of any outstanding order, writ, injunction or decree to which the aggregate, Company is a material adverse effect on party or is subject which adversely affects the assets, liabilities, business, results of operations or financial condition of the Company. As to any matters contained in such opinion which involve the laws of any jurisdiction other than the federal laws of the United States of America, taken or the laws of the States of New York and Florida, Sellers' counsel may rely upon opinions of counsel admitted in such other jurisdictions. Any opinions relied upon by Sellers' counsel as a whole.aforesaid shall be in form and substance satisfactory to Buyer and its counsel, and the counsel rendering such opinions shall be satisfactory to Buyer and its counsel. Any such opinions shall be delivered to Buyer together with the opinion of Sellers' counsel. The opinion of Sellers' counsel may expressly rely as to matters of fact upon certificates furnished by Sellers, appropriate officers and directors of the Company and public officials; (id) At or prior to the Closing, all Related Party Loans and Guarantees shall have been repaid or extinguished as contemplated by Section 5.06; (e) At or prior to the Closing, all parties other than Buyer shall have received satisfactory evidence executed and delivered the Escrow Agreement; (f) At or prior to the Closing, Sellers shall have caused the Company to deliver to Buyer written acknowledgments executed by the contractor or contractors who are in possession of the resignation Company's product molds confirming that such molds are owned by the Company free and clear of any Lien of such contractor (except as otherwise disclosed in Schedule 3.07 hereto); and (g) At or prior to the Closing, Sellers shall have caused the Company to deliver evidence to Buyer demonstrating the taking of the time of Closing of such of the present officers (in their capacity as corporate officers only) of the Company (other than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇) as Buyer may request at least 3 business days prior to Closing. (j) Other than as disclosed in the Disclosure Schedule, there shall not be in effect at the Closing Date any contractual provisions restricting the ability of the Company or any affiliate thereof to conduct any business or compete with any person or restricting the area in which it may conduct any business. (k) Buyer and its counsel shall have approved (which approval shall not be unreasonably withheld) all documents and instruments to be delivered at the Closing or otherwise in connection with the transactions actions contemplated by this Agreement and the Stock Purchase AgreementSection 5.09 hereof. (l) Buyer shall have received the 1997 Audited Financial Statements and they shall not show a material adverse change in the assets or liabilities, the business or condition, financial or otherwise, or the results of operations of the Company when compared to the Unaudited Financial Statements; provided, however, that this Section 5.03(l) shall not apply to, and no condition to Closing or right of Buyer to elect not to effect the transactions contemplated herein shall be created, as a result of any such action or occurrence contemplated by Schedule 5.03(a). 24 - 72 -

Appears in 1 contract

Sources: Stock Purchase Agreement (Playtex Products Inc)

Conditions to the Obligations of Buyer to Effect the Transactions Contemplated Hereby. The obligations of Buyer to effect certain of the transactions contemplated hereby shall be further by this Agreement are subject to the fulfillment at satisfaction, on or prior to 22 - 70 - before the Closing Subsequent Closing, of each of the following conditions, any one or more of which may be unless waived in whole or in part writing by Buyer in writingBuyer: (a) Principals The representations and Sellers warranties of Seller contained in this Agreement shall be true and correct on the Closing Date; (b) Seller shall have performed and complied in all material respects all obligations and agreements and complied with all agreements, obligations, conditions and covenants contained in this Agreement and the Stock Purchase Agreement Agreement, or in any document delivered in connection herewith, that are required to be performed and complied with by them at it or prior to his on or before the Closing and all representations and warranties of Principals and Sellers set forth in this Agreement and the Stock Purchase Agreement shall be true and correct in all material respects as of the date of this Agreement and as amended by any Disclosure Supplements as of the Closing Date Date; (as if the Closing Date was the date of this Agreement), and c) Buyer shall have received a certificate to that effect signed from Seller executed by Principals, in the form attached hereto a duly authorized officer of Seller dated as Exhibits D, together with such other documents, instruments and writings required to be delivered by Principals and Sellers or by the Company at or prior to the Closing pursuant to this Agreement and the Stock Purchase Agreement or otherwise required in connection herewith or therewith, provided, however, that if the Disclosure Supplements reveal a material change from the Schedules attached hereto at the date hereof that is unacceptable to Buyer, Buyer shall not be obligated to effect the transactions contemplated hereby. The immediately foregoing proviso, however, shall not apply to changes in the Disclosure Supplements regarding the matters set forth in Schedule 5.03(a) of the Disclosure Schedule, as to which changes Buyer shall not be relieved from its obligations to effect the transactions contemplated hereby. (b) Principals shall have delivered to Buyer (i) copies of the Company's Articles of Incorporation including all amendments thereto certified by the Secretary of State of the State of Minnesota, (ii) a certificate from the Secretary of State to the effect that the Company is in good standing and listing all charter documents of the Company on file, (iii) a certificate from the Secretary of State or other appropriate official in each state in which the Company is qualified to do business to the effect that the Company is in good standing in such state and (iv) certificates as to the tax status of the Company in the State of Minnesota and each state in which the Company is qualified to do business. (c) Prior to the Closing Date, there certifying that the conditions specified in Section 7.1(a) and (b) have been satisfied; (d) Buyer shall be no have received all consents to the assignment of all Contracts that require the consent of the other party thereto, each pursuant to a written instrument satisfactory to Buyer; (e) There shall not have been any material adverse change in the assets nature of or liabilities, financial condition of the business or conditionBusiness; (f) There shall not have been any material adverse change, financial or otherwise, in the Acquired Assets, or the results of operations of or the Company, from February 28, 1998 and Principals shall have delivered to Buyer the certificate in the form attached hereto as Exhibit D, dated the Closing Date, to such effect; provided, however, that this Section 5.03(c) shall not apply to, and no condition to Closing or right of Buyer to elect not to effect the transactions contemplated herein shall be created, as a result of any action or occurrence contemplated by Schedule 5.03(a) reasonably foreseeable prospects of the Disclosure Schedule. (d) No action or proceedings which have a reasonable likelihood of success shall have been instituted or, to the knowledge of any Principal, threatened by any governmental body or authority to restrain or prohibit any of the transactions contemplated hereby or by the Stock Purchase Agreement. (e) Each party hereto shall have received all material consents, waivers, approvals, licenses or other authorizations required from any governmental or non-governmental entity for the execution, delivery and performance of this Agreement and the Stock Purchase Agreement by the parties hereto and thereto. (f) Buyer shall have received an opinion from Faegre & ▇▇▇▇▇▇, LLP, counsel to Principals, dated the Closing Date, to the effect set forth in Exhibit E hereto.Business; (g) No injunction or other court order requiring that any part of Seller and Seller’s stockholders shall have executed and delivered the business or assets of the Company be held separate or divested or that any business or assets of Buyer or any affiliate of Buyer be divested, or imposing or involving any conditions on Buyer or its affiliates or the Company, which could be reasonably expected Non-Competition Agreement to have a material adverse effect on the assets, liabilities, business, financial condition, prospects or results of operations of either Buyer or any affiliate of Buyer on the one hand, or the Company on the other hand, shall be in effect and no proceedings shall be pending by or before, or threatened in writing by or before, any governmental body or court of competent jurisdiction with respect thereto.Buyer; (h) The Company Seller shall not have taken any of executed and delivered the actions set forth in Section 4.01(a) - (o) Lease to the extent such actions were not permitted under Section 4.01 and had, individually or in the aggregate, a material adverse effect on the assets, liabilities, business, results of operations or financial condition of the Company, taken as a whole.Buyer; (i) Buyer Seller shall have received satisfactory evidence of delivered the resignation as of the time of Closing of such of the present officers Disclosure Schedules in a form acceptable to Buyer; (in their capacity as corporate officers onlyj) of the Company (other than Seller has reached mutual agreement with ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇) as Buyer may request at least 3 business days prior ▇ regarding a workout with respect to Closing. (j) Other than as disclosed in the Disclosure Schedule, there shall not be in effect at the Closing Date any contractual provisions restricting the ability senior Indebtedness of the Company or any affiliate thereof to conduct any business or compete with any person or restricting the area in which it may conduct any business.Seller; and (k) Buyer and its counsel Seller shall have approved (which approval shall not be unreasonably withheld) all documents executed and instruments delivered the Stockholders Agreement to be delivered at the Closing or otherwise in connection with the transactions contemplated by this Agreement and the Stock Purchase AgreementBuyer. (l) Buyer shall have received the 1997 Audited Financial Statements and they shall not show a material adverse change in the assets or liabilities, the business or condition, financial or otherwise, or the results of operations of the Company when compared to the Unaudited Financial Statements; provided, however, that this Section 5.03(l) shall not apply to, and no condition to Closing or right of Buyer to elect not to effect the transactions contemplated herein shall be created, as a result of any such action or occurrence contemplated by Schedule 5.03(a). 24 - 72 -

Appears in 1 contract

Sources: Asset Purchase Agreement (US Highland, Inc.)