Closing and Closing Documents 7 4.1 Closing...................................................................................... 7 4.2 Seller's Deliveries.......................................................................... 7 4.3 Purchaser's Deliveries....................................................................... 8 4.4 Fees and Expenses; Closing Costs............................................................. 8 4.5 Adjustments.................................................................................. 8 ARTICLE V Miscellaneous......................................................................................... 9
Documents at Closing At the Closing, the following documents shall be delivered:
(a) Duska will deliver, or will cause to be delivered, to Shiprock the following:
(1) a certificate executed by the Chief Executive Officer or President of Duska to the effect that all representations and warranties made by Duska under this Agreement are true and correct as of the Closing and as of the Effective Date, the same as though originally given to Shiprock or Shiprock Sub on said date;
(2) a certificate from the state of Duska’s incorporation dated within five business days of the Closing to the effect that Duska is in good standing under the laws of said state;
(3) Investment Letters in the form attached hereto as Exhibit “D” executed by each of the Duska stockholders referred to in Section 9(c);
(4) such other instruments, documents and certificates, if any, as are required to be delivered pursuant to the provisions of this Agreement;
(5) executed copy of the Certificate of Merger for filing in Delaware; and certified copies of resolutions adopted by the stockholders and directors of Duska authorizing the Merger;
(6) all other items, the delivery of which is a condition precedent to the obligations of Shiprock and Shiprock Sub, as set forth herein, including the asset transfer and assumption agreements contemplated by Section 7(f); and (7) the legal opinion required by Section 9(e) hereof.
(b) Shiprock and Shiprock Sub will deliver or cause to be delivered to Duska:
(1) stock certificates representing those securities of Shiprock to be issued as a part of the Merger as described in Section 2 hereof;
(2) a certificate of the President of Shiprock and Shiprock Sub, respectively, to the effect that all representations and warranties of Shiprock and Shiprock Sub made under this Agreement are true and correct as of the Closing, the same as though originally given to Duska on said date;
(3) certified copies of resolutions adopted by Shiprock’s and Shiprock Sub’s Board of Directors and Shiprock Sub’s stockholder authorizing the Merger and all related matters;
(4) certificates from the jurisdiction of incorporation of Shiprock and Shiprock Sub dated within five business days of the Closing Date that each of said corporations is in good standing under the laws of said state;
(5) opinion of Shiprock’s counsel as described in Section 8(l) above;
(6) such other instruments and documents as are required to be delivered pursuant to the provisions of this Agreement;
(7) written resignation of all of the officers and directors of Shiprock and Shiprock Sub;
(8) Escrow Agreement, signed by ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇ and Associates, Ltd.;
(9) Certified copy of the filed Amended and Restated Articles of Incorporation;
(10) Indemnification Waiver letter signed by ▇▇▇▇▇; and
(11) all other items, the delivery of which is a condition precedent to the obligations of Duska, as set forth in Section 8 hereof, including the asset transfer and assumption agreements contemplated by Section 7(f).
Closing and Escrow a. It shall be the obligation of the Seller to open an escrow for the purposes of this Agreement, and to pay all fees required for the opening. The Buyer shall pay all closing costs required for the closing thereof including, but not limited to, fees, taxes, title insurance costs, documentary stamp taxes and any miscellaneous escrow fees.
b. Upon execution of this Agreement, the parties hereto shall deposit an executed counterpart of this Agreement with Title Company and this instrument shall serve as instructions to Title Company as the escrow holder for consummation of the purchase and sale contemplated herby. Seller and Buyer agree to execute such additional and supplementary escrow instructions as may be appropriate to enable the escrow holder to comply with the terms of this Agreement; provided, however, that in the event of any conflict between the provisions of this Agreement and any supplemental escrow instructions, the terms of this Agreement shall control.
c. The Closing hereunder shall be held and delivery of all items at the Closing under the terms of this Agreement shall be made at the offices of the Title Company thirty (30) days from the date of this Agreement (the “Closing Date”). Such date may not be extended without the prior written approval of both Seller and Buyer, except as otherwise expressly provided in this Agreement.
d. At or before the Closing, Seller shall deposit into escrow the following:
i. A duly executed and acknowledged Grand Deed conveying rights to the Real Property to Buyer, subject to the Conditions of Title; and
e. Before Closing, Buyer shall deposit into escrow the following items:
i. Funds necessary to close this transaction, in accordance with Paragraph 3 above.
f. Seller and Buyer shall each deposit such other instruments as are reasonably required by the escrow holder or otherwise required to close the escrow and consummate the purchase of the Real Property in accordance with the terms hereof.
Transactions at the Closing The closing of the transactions set forth herein (the "Closing") shall take place at York Gate, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, within ten business days after the date on which all conditions to the Closing shall have been satisfied and all legally required regulatory approvals (including the approval of the Controller of Restrictive Trade Practices, which approval shall not include any conditions or restrictions (the “Anti-trust Approval”)) shall have been obtained, or thereafter at such other time, date and place as may be agreed by the Parties (the time and date of the Closing being herein referred to as the “Closing Date”). In the event that the Closing does not take place within 90 days of the Effective Date, each Party shall be entitled to terminate this Agreement without giving rise to any right or claim by the other Party hereto, excluding claims for breaches of obligations or representations by any Party hereto prior to such termination; provided, however, that no Party may terminate this Agreement pursuant to this Section 3 if such Party's failure to fulfill any of its obligations under this Agreement shall have been a principal reason that the Closing shall not have occurred within the 90-day period of the date hereof. At the Closing, the following transactions shall occur, which transactions shall be deemed to take place simultaneously and no transaction shall be deemed to have been completed or any document delivered until all such transactions have been completed and all required documents have been delivered:
(1) Seller shall transfer to the Purchaser the Purchased Shares, free and clear of any and all Encumbrances.
(2) Seller shall deliver to Purchaser duly executed irrevocable instructions from the Seller to the broker holding the Purchased Shares or to the holder registered as holding the Purchased Shares with any registration company or otherwise, instructing the electronic transfer of the Purchased Shares to the respective accounts of the Purchaser, as shall be provided to Seller by Purchaser.
(3) The Purchaser shall transfer to the bank account of the Seller the Purchase Price. The Purchase Price shall be paid in US$ by wire transfer of immediately available funds. Any tax due by Seller with respect to the Seller's sale of the Purchased Shares shall be borne exclusively by the Seller and Seller shall indemnify the Purchaser in the event that any taxing authority requires Purchaser to pay the tax liability of Seller with respect to the sale of the Purchased Shares hereunder. The Purchaser shall deliver to the Seller, promptly following its receipt, any notice, demand or claim it receives from any taxing authority in respect of any tax due with respect to the Seller and its sale of the Purchased Shares. Without derogating from Seller's indemnification obligations as set forth above and the Purchaser's right to timely comply with any requirement made to it by a taxing authority, the Seller shall have the right (at its sole discretion and expense) to directly negotiate and settle any such tax requirement with the relevant taxing authority.
Actions at the Closing Simultaneously with the execution of this Agreement or as with regard to the transfer of securities as soon thereafter as is practicable:
(a) The Seller shall deliver to the Company (i) a copy of a certificate of good standing (or similar documents applicable for such jurisdictions) for the Seller, certified as of a date no later than five (5) Business Days prior to the date hereof from the proper Governmental Authority of the Seller's jurisdiction of organization; and (ii) a certificate from the Seller’s secretary or director certifying as to the validity and effectiveness of, and confirming delivery of, (x) copies of the Seller’s Organizational Documents as in effect as of the date hereof, (y) copies of the resolutions of its board of directors and the Shareholders authorizing the execution, delivery and performance of this Agreement and each document to which they are a party or bound, and the consummation of the Exchange, the Series A Preferred Exchange and each of the transactions contemplated hereby, and (z) the incumbency of directors authorized to execute this Agreement or any other document to which the Seller is or is required to be a party or otherwise bound.
(b) The Company shall deliver to the Seller (i) a copy of a certificate of good standing for the Company, certified as of a date no later than five (5) Business Days prior to the date hereof from the proper Governmental Authority of the Company’s jurisdiction of organization; and (ii) a certificate from the Company’s secretary or authorized officer certifying as to the validity and effectiveness of, and confirming delivery of, (x) copies of the Company’s Organizational Documents as in effect as of the date hereof, (y) copies of the resolutions of its board of directors authorizing the execution, delivery and performance of this Agreement and each document to which it is a party or bound, respectively, and the consummation of the Exchange, the Series A Preferred Exchange and each of the transactions contemplated hereby, including the appointment of the individuals nominated by the Seller as the directors and Mr. ▇▇▇▇▇ ▇▇▇▇▇▇ as the Chief Executive Office of the Company with immediate effect at Closing, and (z) the incumbency of officers or directors authorized to execute this Agreement or any other document to which the Company is or is required to be a party or otherwise bound.
(c) Each of the Shareholders shall deliver to the Company the certificate(s) representing their Seller Securities owned by each such Shareholder, duly endorsed or accompanied by stock powers duly executed in blank and otherwise in a form acceptable for transfer on the books of the Company, such certificates may be delivered to the Company’s registrar or transfer agent.
(d) The Company shall deliver to the Shareholders a copy of the transfer agent instruction letter that instructs the Company’s stock transfer agent to issue the Series B Preferred Stock in book entry form to the Shareholders calculated in accordance with Section 2.1(b).
(e) The Company Preferred Shareholder shall deliver to the Company the cancellation request and executed agreements as needed for surrendering of all of the Series A Preferred Stock owned by him on the books of the Company, such cancellation request may be delivered to the Company’s transfer agent.
(f) The Company shall deliver to the Shareholders a copy of the transfer agent instruction letter that instructs the Company’s stock transfer agent to issue all authorized shares of the Series A Preferred Stock in book entry form to the Shareholders.
(g) The Company shall deliver to the Company Preferred Shareholder a copy of the transfer agent instruction letter that instructs the Company’s stock transfer agent to issue the Series B Preferred Stock in book entry form to the Company Preferred Shareholder calculated in accordance with Section 2.1(c).
(h) The Company shall deliver to the Seller a copy of the written resignation of ▇▇. ▇▇▇ ▇▇▇▇ from his position as Chief Executive Officer of the Company.
(i) The Shareholders and the Company Preferred Shareholder shall deliver to the Company counterparts duly executed by them to the Lock-Up Agreement and the Registration Rights Agreement.
(j) The Company shall deliver to the Seller duly executed copies of the Employment Agreements.
(k) The Company and the Company Preferred Shareholder shall deliver validly executed transfer documents in accordance with Section 7.3 dated as of the date hereof and effective as of the next Business Day after the date hereof.