The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date: (a) each Seller shall (i) deliver to the Purchaser all of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant; (b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith; (c) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing; (d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date; (e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; (f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll; (g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and (h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereof.
Appears in 2 contracts
Sources: Equity Purchase Agreement (NorthStar Healthcare Income, Inc.), Equity Purchase Agreement (Griffin-American Healthcare REIT III, Inc.)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(ai) each the Seller shall (i) deliver to the Purchaser all of the stock certificates (if any) evidencing the Purchased Securities owned by such Seller Shares, duly endorsed for transfer or accompanied by duly executed security transfer stock powers or other form forms of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(bii) the Purchaser shall deliver, or cause deliver to the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Purchase Price (less the Indemnity Escrow Amount and the Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Holdback Amount) by wire transfer of immediately available funds to the account(s) designated by the Representative Seller (which account(s) shall be designated by the Seller to the Purchaser in writing not less than three (3) Business Days prior to at least two business days before the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith);
(ciii) the Company shall deliver to the Purchaser appropriate payoff letters from the holders of Indebtedness set forth on the Indebtedness Payoff Schedule and shall make arrangements reasonably satisfactory to the Purchaser for such holders of such Indebtedness set forth on the Indebtedness Payoff Schedule to deliver all related Lien releases to the Purchaser as soon as practicable after the Closing;
(iv) the Purchaser shall shall, in accordance with the payoff letters, repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of the Indebtedness listed set forth on Schedule 1.05(c) (collectivelythe Indebtedness Payoff Schedule, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(dv) the Purchaser shall deliver, or shall cause to be delivered, to deliver the Escrow Agent the Indemnity Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateAgent;
(evi) the Purchaser shall deliver, or shall cause to be delivered, to deliver the Representative the Representative Expenses Seller Holdback Amount by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the ClosingSeller; and
(hvii) the Purchaser, each Trilogy Party Purchaser and each the Seller shall make such other deliveries as are required from such party by Article II hereof.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Halyard Health, Inc.)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller shall (i) deliver to the Purchaser all of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, deliver or cause the Company to deliver in the case of the Merger Cash Recipients, be delivered to each Seller and each Merger Cash Recipient the aggregate portion such Seller’s Allocation Percentage of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Purchase Price, by wire transfer of immediately available funds to the account(s) designated by the Representative Sellers;
(b) the Company shall redeem or cause to be redeemed the Non-Voting MRPS Shares consistent with the terms and conditions set forth in writing not less than three (3) Business Days prior to the Closing Date; providedCompany Bylaws, that and the Purchaser shall pay, or cause to be entitled to engage a paying agent to effect any payments paid, on behalf of the Company, the Non-Voting MRPS Redemption Amount, by wire transfer of immediately available funds to the Sellers under this Agreement, and account(s) designated by the Company and the Sellers shall take all actions reasonably required in connection therewithholder of such Non-Voting MRPS Shares;
(c) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then-outstanding balance of all Indebtedness identified on the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(d) the Purchaser shall deliver, or shall cause to be delivered, deliver the Purchase Price Adjustment Escrow Amount to the Escrow Agent for deposit into an escrow account (the “Purchase Price Adjustment Escrow Account”) established pursuant to the terms of the Escrow Agreement;
(e) the Purchaser shall pay, on behalf of the Company, all Transaction Expenses to each Person who is owed a portion thereof;
(f) the Purchaser shall deliver to the Subsidiaries the Bonus Amount (for distribution by the Subsidiaries to each respective employee who is owed a portion thereof as set forth on the Bonus Amount Schedule) by wire transfer of immediately available funds to the account respective account(s) designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Datesuch Subsidiaries; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;and
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party the Company and each Seller the Sellers shall make such other deliveries as are required from such party by Article II hereofIV.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Huntsman International LLC)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller the Purchaser shall (i) deliver to the Purchaser all of Seller the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Closing Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Consideration by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three Seller at least two (32) Business Days prior to the Closing Date; provided, that ;
(b) the Purchaser shall be entitled to engage a paying agent to effect any payments deposit $15,500,000 (the “Escrow Amount”) into an escrow account (the “Escrow Account”) established pursuant to the Sellers under terms and conditions of an escrow agreement (the “Escrow Agreement”) by and among the Purchaser, the Seller and ▇▇▇▇▇ Fargo, N.A., as escrow agent (the “Escrow Agent”), substantially in the form of Exhibit C attached hereto, to be distributed in accordance with the terms of this Agreement, Agreement and the Company and the Sellers shall take all actions reasonably required in connection therewithEscrow Agreement;
(c) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness set forth on the Indebtedness listed on Schedule 1.05(c) (collectivelySchedule, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(d) the Purchaser Seller shall deliver, or shall cause to be delivered, deliver to the Escrow Agent Purchaser unit certificates representing all of the Escrow Amount by wire transfer Units, free and clear of immediately available funds all Liens, which certificates shall be endorsed to the account designated Purchaser or accompanied by the Escrow Agent security powers duly executed in writing not less than three (3) Business Days prior to the Closing Dateblank;
(e) the Purchaser shall deliverPurchaser, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) and the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II III hereof; and
(f) simultaneously with the Closing, the Purchaser shall pay, or cause to be paid, on behalf of the Seller and the Company (as applicable), the Transaction Expenses by wire transfer of immediately available funds as directed by the Seller.
Appears in 2 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement (DreamWorks Animation SKG, Inc.)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller Faraday shall (i) deliver to the Purchaser Company all stock certificates representing the shares of the certificates (if any) evidencing the Purchased Securities owned by such Seller ISI Common Stock, duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to with duly executed assignments separate from certificate attached, in proper form for transfer, free and clear of all Encumbrances (other than those arising under the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case Organizational Documents of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantISI);
(b) the Purchaser ISH shall deliver, or cause deliver to the Company all stock certificates representing the shares of ILG Common Stock, duly endorsed in blank or with duly executed assignments separate from certificate attached, in proper form for transfer, free and clear of all Encumbrances (other than those arising under the Organizational Documents of ILG);
(c) The Company will issue 529,999 Class A Units to deliver Faraday and 470,000 Class A Units to ISH, which issuances shall be evidenced by the Second Amended and Restated LLC Agreement;
(d) The Company shall repay, on behalf of ISI, all amounts required to be paid under the payoff letters delivered pursuant to Section 3.03(e)(iv) in order to fully discharge the case of Indebtedness owed to the Merger Cash RecipientsPersons thereunder, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(saccounts designated in such payoff letters; and
(e) designated At or prior to the Closing, Faraday shall deliver, or cause to be delivered, to ISH:
(i) a good standing certificate of ISI and each of its Subsidiaries, issued by the Representative jurisdiction in writing which such entity was formed, in each case, dated within five (5) days prior to the Closing Date, which shall indicate that each such Person is in good standing (or similar status) in such jurisdiction;
(ii) a certificate, duly executed by the Secretary of ISI and dated as of the Closing Date, certifying to (A) a true, correct and complete copy of the certificate of incorporation (or equivalent) of ISI and each of its Subsidiaries, together with all amendments thereto, (B) a true, correct and complete copy of the bylaws (or equivalent) of ISI and each of its Subsidiaries, together with all amendments thereto, and (C) the resolutions of the board of directors of ISI authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby;
(iii) written evidence of the termination of the agreements by and between or among Faraday and ISI or any of its Subsidiaries as set forth on Section 3.03(e)(iii) of the Disclosure Schedule, in each case, in form and substance satisfactory to ISH and without any remaining liability of any kind (other than monetary payment reflected as Expenses, if any) on the part ISI or any of its Subsidiaries as a result of or in connection with such agreements;
(iv) not less than three (3) Business Days prior to the Closing Date; provided, that payoff letters from each holder of Indebtedness of ISI or its Subsidiaries listed on Section 3.03(e)(iv) of the Purchaser shall be entitled Disclosure Schedule, in form and substance reasonably acceptable to engage a paying agent to effect any payments to the Sellers under this AgreementISH, and unfiled copies of releases of all related Encumbrances on the Company shares of ISI Common Stock and the Sellers shall take all actions reasonably required in connection therewith;
(c) the Purchaser shall repay, or cause to be repaid, on behalf assets of the Company ISI and its Subsidiaries, the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant including all required UCC-3 termination statements or other evidences of lien releases satisfactory to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingISH;
(dv) the Purchaser Amended and Restated ▇▇▇▇▇▇▇▇▇▇ Management Services Agreement in substantially the form attached hereto as Exhibit D, duly executed by ▇▇▇▇▇▇▇▇▇▇ Management Holdings, LLC and Faraday;
(vi) letters of resignation, effective as of the Closing, from each of the directors of ISI and its Subsidiaries in anticipation of the reconstitution of the boards of directors of such entities immediately following the Closing in accordance with Section 7.03(b) of the Second Amended and Restated LLC Agreement; and
(vii) a certificate from ISI satisfying the requirements of Treasury Regulations Section 1.1445-2(b)(2) in form and substance reasonably satisfactory to ISH.
(f) At or prior to the Closing, ISH shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer Faraday:
(i) a good standing certificate of immediately available funds to the account designated ILG and each of its Subsidiaries, issued by the Escrow Agent jurisdiction in writing not less than three which such entity was formed, in each case, dated within five (35) Business Days days prior to the Closing Date, which shall indicate that each such Person is in good standing (or similar status) in such jurisdiction;
(eii) the Purchaser shall delivera certificate, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated duly executed by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid Secretary of ILG and dated as of the Closing by wire transfer Date, certifying to (A) a true, correct and complete copy of immediately available funds to the accounts designated by certificate of incorporation (or equivalent) of ILG and each of its Subsidiaries, together with all amendments thereto, (B) a true, correct and complete copy of the payees thereof in writing not less than three bylaws (3or equivalent) Business Days prior to the Closing Date; providedof ILG and each of its Subsidiaries, that the Transaction Expenses described in clauses (ii) together with all amendments thereto, and (viiC) the resolutions of the board of directors of ILG authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby;
(iii) written evidence of the termination of the agreements by and between or among ISH and ILG or any of its Subsidiaries as set forth on Section 3.03(f)(iii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (Disclosure Schedule, in each case, in form and substance satisfactory to Faraday and without any remaining liability of any kind (other than Permitted Liensmonetary payment reflected as Expenses, if any) shall be released upon on the payment part ILG or any of its Subsidiaries as a result of or in connection with such agreements;
(iv) the Amended and Restated Platinum Management Services Agreement in substantially the form attached hereto as Exhibit E, duly executed by The Gores Group, LLC, Platinum Equity Advisors, LLC and ISH;
(v) letters of resignation, effective as of the Funded Indebtedness or otherwise upon Closing, from each of the Closingdirectors of ILG and its Subsidiaries in anticipation of the reconstitution of the boards of directors of such entities immediately following the Closing in accordance with Section 7.03(b) of the Second Amended and Restated LLC Agreement; and
(hvi) a certificate from ILG satisfying the Purchaser, each Trilogy Party requirements of Treasury Regulations Section 1.1445-2(b)(2) in a form and each Seller shall make such other deliveries as are required from such party by Article II hereofsubstance reasonably satisfactory to Faraday.
Appears in 2 contracts
Sources: Contribution Agreement (Interior Logic Group Holdings, LLC), Contribution Agreement (Interior Logic Group Holdings, LLC)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate take, or cause to be taken, the following transactions (actions at the “Closing Transactions”) on the Closing DateClosing:
(a) each the Seller shall (i) deliver or cause to be delivered to the Purchaser all of the certificates (certificates, if any) , evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or Equity Interests of the Companies, accompanied by duly executed security transfer stock powers or other form applicable forms of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith;
(c) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesAcquired Companies, all amounts necessary to discharge fully the Indebtedness listed on Schedule 1.05(c) (collectively, then outstanding balance of the “Funded Indebtedness”), pursuant to the Payoff Letters Credit Facility by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing the Credit Facility, it being understood that no Transaction Expenses or any Indebtedness in other than that existing under the Payoff LettersCredit Facility shall be paid by any borrowings under the Credit Facility;
(c) the Seller shall pay, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds on behalf of the Equity FinancingAcquired Companies, all Transaction Expenses and the Indebtedness set forth on Schedule 2.03(c), to each Person who is owed a portion thereof; provided, however, that any payments that are compensatory in nature for Income Tax purposes shall be made through the payroll processing system of the Acquired Companies;
(d) the Purchaser Seller shall deliver, or shall cause to be delivered, deliver to the Escrow Agent Purchaser each of the Escrow Amount by wire transfer of immediately available funds to the account designated following:
(i) a certificate signed by the Escrow Agent in writing not less than three (3) Business Days prior to Secretary or the Assistant Secretary of the Seller, dated as of the Closing Date, certifying as to (A) the Organizational Documents of Seller, each of the Companies and their respective Subsidiaries, (B) the resolutions adopted by the board of managers of the Seller authorizing the execution and delivery of this Agreement and the consummation of the Transactions and (C) the names and signatures of the officers of the Seller authorized to sign this Agreement;
(ii) a non-foreign affidavit dated as of the Closing Date that complies with Treasury Regulation Section 1.1445-2(b)(2), certifying as to the Seller's non-foreign status;
(iii) appropriate payoff letters from the holder of the Credit Facility;
(iv) a copy of the Non-Solicitation Agreement, duly executed by the Seller;
(v) a copy of the Consulting Termination Agreement, duly executed by the Sun Manager and the Seller; and
(vi) resignations of each of the officers and directors of the Acquired Companies (but with respect to officers, only resignations of officers that are not employees of the Acquired Companies), in each case effective as of the Closing Date.
(e) the Purchaser shall deliver, or shall cause to be delivered, have delivered to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated Seller:
(i) a certificate signed by the Representative in writing not less than three Secretary or the Assistant Secretary of the Purchaser certifying as to (3i) Business Days prior the Organizational Documents of the Purchaser, (ii) the resolutions adopted by the board of managers of the Purchaser authorizing the execution and delivery of this Agreement and consummation of the Transactions and (iii) the names and signatures of the officers of the Purchaser authorized to the Closing Datesign this Agreement;
(fii) the Purchaser shall deliverNon-Solicitation Agreement, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated duly executed by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereof.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller shall (i) deliver to the Purchaser all of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause deliver the Company to deliver in the case of the Merger Closing Residual Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Consideration by wire transfer of immediately available funds to the account(sStockholders in accordance with Section 1.08;
(b) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled deliver a Stockholder Note to engage a paying agent to effect any payments to each Stockholder made in the Sellers under this Agreement, and name of such Stockholder in the Company and the Sellers shall take all actions reasonably required in connection therewithoriginal principal amount of $4,500,000;
(c) the Purchaser shall issue 1,166,666 Purchaser Shares and shall deliver a certificate to each Stockholder evidencing 583,333 Purchaser Shares;
(d) the Purchaser and each Stockholder will enter into an Employment Agreement;
(e) each of the Stockholders will be duly appointed to Purchaser's board of directors, to serve until the next annual meeting of the Purchaser's stockholders, at which point they would become subject to the Purchaser's customary director election procedure;
(f) the Purchaser shall deliver evidence to the Stockholders of the insurance policy described in Section 5.02;
(g) the Purchaser and the Stockholders shall enter into the Registration Rights Agreement;
(h) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesCompany, all amounts necessary to discharge fully the Indebtedness listed on Schedule 1.05(c) (collectively, the “then outstanding balance of all Funded Indebtedness”), pursuant to the Payoff Letters if any, by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Funded Indebtedness in appropriate payoff letters from the Payoff Letters, holders of Funded Indebtedness which include arrangements reasonably satisfactory to the funding Purchaser for such repayment holders of Funded Indebtedness to be obtained first from deliver all related Lien releases to the proceeds of Debt Financing and then, Purchaser as necessary, from soon as practicable after the proceeds of the Equity FinancingClosing;
(di) the Purchaser shall deliverpay, or shall cause to be deliveredon behalf of the Company, to the Escrow Agent the Escrow Amount Designated Transaction Expenses, by wire transfer of immediately available funds to the account account(s) designated by the Escrow Agent in writing not less than three (3) Business Days prior each Person to the Closing Datewhom such Designated Transaction Expenses are to be paid;
(ej) each Stockholder shall deliver to the Purchaser shall deliverone or more certificates representing the Stock held by such Stockholder, together with duly executed stock powers or shall cause other documents of transfer and assignment sufficient to be deliveredtransfer record title and full beneficial ownership of such Stock to Purchaser, to the Representative the Representative Expenses by wire transfer free and clear of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Dateall Liens;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(gk) the Company shall deliver to a certificate signed by the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment Secretary of the Funded Indebtedness Company certifying as to (i) the full force and effect of the articles of incorporation and bylaws (or otherwise upon equivalent governing documents) of the ClosingCompany attached to such certificates as exhibits, (ii) the accuracy and full force and effect of resolutions adopted by the Board of Directors of the Company regarding this Agreement and the transactions contemplated hereby and attached as one or more exhibits to such certificate and (iii) the names and signatures of the officers of the Company authorized to sign this Agreement;
(l) Each Stockholder shall deliver a certificate of non-foreign status pursuant to Treas. Reg. Section 1.1445-2(b)(2); and
(hm) The Purchaser shall deliver to the Stockholders a certificate signed by the Secretary of the Purchaser certifying as to (i) the Purchaserfull force and effect of the articles of incorporation and bylaws (or equivalent governing documents) of the Purchaser attached to such certificate as exhibits, each Trilogy Party (ii) the accuracy and each Seller shall make full force and effect of resolutions adopted by the board of directors of the Purchaser regarding this Agreement and the transactions contemplated hereby and attached as one or more exhibits to such other deliveries as are required from such party by Article II hereofcertificate and (iii) the names and signatures of the officers of the Purchaser authorized to sign this Agreement.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the The parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller shall (i) deliver to the Purchaser all of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company deliver to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Purchase Price, by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithSeller;
(cb) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then-outstanding balance of all Indebtedness identified on the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the as specified in each applicable Payoff Letters by wire transfer of immediately available funds Letter to the account(s) designated by the holders of in each such Closing applicable Payoff Letter in order fully to discharge such Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds terminate all applicable obligations and liabilities of the Equity FinancingCompany and its Subsidiaries related thereto;
(c) the Purchaser shall deliver the Purchase Price Adjustment Escrow Amount to the Escrow Agent for deposit into an escrow account (the “Purchase Price Adjustment Escrow Account”) established pursuant to the terms of the Escrow Agreement; and
(d) the Purchaser shall deliverpay, or shall cause to be deliveredon behalf of Seller, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the all Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Dateeach Person who is owed a portion thereof; provided, that the any Transaction Expenses described in clauses (ii) that are subject to employment Tax withholding and (vii) of the definition thereof reporting shall be paid to the Company for processing Company, which shall in turn cause such amounts to be paid through its payroll;
(gor its Subsidiaries’) payroll system within fifteen (15) days following the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereofClosing Date.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall will consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller shall (i) deliver the Company and Merger Sub will cause the Certificate of Merger to be executed and filed with the Purchaser all Secretary of State of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form State of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantDelaware;
(b) the Purchaser shall deliverParent will deposit, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds funds, into a custodial account established pursuant to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage terms and conditions of a paying agent agreement in a form to effect any payments to be mutually agreed upon among the Sellers under this AgreementRepresentative, Parent and the Company and Paying Agent (the Sellers “Paying Agent Agreement”), an amount equal to (i) the Class A Merger Consideration, plus (ii) the Class B Unvested Merger Consideration, plus (iii) the Closing Residual Cash Consideration (as determined in accordance with Section 1.02), which amount shall take all actions reasonably required in connection therewithbe held by the Paying Agent for the benefit of the Stockholders to make the payments contemplated by Section 1.03;
(c) the Purchaser shall Company will deliver to Parent appropriate payoff letters and all related Lien releases with respect to the Indebtedness set forth on Schedule 2.01(c);
(d) Parent will repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness listed set forth on Schedule 1.05(c) (collectively, the “Funded Indebtedness”2.01(c), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(de) the Purchaser shall deliverParent will (i) pay, or shall cause to be deliveredpaid, on behalf of the Stockholders and the Company (as applicable), the unpaid Transaction Expenses with respect to the Escrow Agent the Escrow Amount which Parent has received a final invoice by wire transfer of immediately available funds as directed by the Representative, and (ii) will deposit the Company Payroll Taxes with the Company and will cause the Surviving Corporation to pay the Company Payroll Taxes through the Surviving Corporation’s payroll system to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;proper Governmental Body; and
(f) the Purchaser shall deliverParent, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) and the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall Representative will make such other deliveries as are required from such party by Article II III hereof.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each the Seller shall (i) deliver to the Purchaser all evidence of assignment of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or Interests to the relevant redeeming entity or the Purchaser, free and clear of all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantLiens;
(b) the Purchaser shall deliverpay, or cause the Company to deliver in the case of the Merger Cash Recipientsbe paid, to each the Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Purchase Price by wire transfer of immediately available funds to the account(s) designated by the Representative Seller (which account(s) and the amounts payable to the Seller with respect to each Interest shall be designated by the Seller to the Purchaser in writing not less than three (3) at least two Business Days prior to before the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith);
(c) the Company shall deliver to the Purchaser appropriate payoff letters from the holders of Indebtedness set forth on Schedule 1.4(c) (the “Payoff Letters”) (which Payoff Letters shall be delivered at least three Business Days before the Closing Date in form reasonably satisfactory to the Purchaser, and each of which shall (i) specify all amounts of Indebtedness owed to such holder, as well as any other amounts required to fully pay off all such Indebtedness on the Closing Date, and (ii) agreeing that, upon such holder’s receipt of the applicable payoff amount, (A) all outstanding obligations of the Company and its Subsidiaries arising under or related to the applicable Indebtedness shall be repaid and discharged in full and (B) any Liens such lender or holder may have in connection therewith shall automatically be released and terminated in full) and shall make customary arrangements for such holders of Indebtedness to deliver all evidence of related Lien releases to the Purchaser as soon as practicable after the Closing;
(d) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesCompany, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness listed set forth on Schedule 1.05(c) (collectively, the “Funded Indebtedness”1.4(d), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(de) the Purchaser shall deliverpay, or shall cause to be deliveredpaid, to the Escrow Agent the Adjustment Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing DateAgent;
(f) the Purchaser shall deliverpay, or shall cause to be deliveredpaid, to the applicable payees the Transaction Expenses that remain unpaid as on behalf of the Closing Company, all amounts necessary to discharge fully the then outstanding balance of all Estimated Transaction Expenses, by wire transfer of immediately available funds funds, to the accounts account(s) designated by the payees thereof in writing not less than three (3) Business Days prior each Person to the Closing Date; provided, that the whom such Estimated Transaction Expenses described in clauses (ii) and (vii) of the definition thereof are to be paid; provided that any amounts treated as wages for income Tax purposes shall be paid to the Company for processing or its applicable Subsidiary, which shall pay such amounts, less any applicable withholding Taxes, to such recipients through its payroll;payroll system on the Closing Date; and
(g) the Company shall deliver to Purchaser and the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereof2.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each the Seller shall (i) deliver to the Purchaser all of the certificates (certificates, if any) , evidencing all of the Purchased Securities owned by such Seller duly endorsed for transfer or Shares, accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrantstock powers;
(b) the Company shall cause all outstanding Options to be cancelled as of the Closing;
(c) the Purchaser shall deliver, deliver or cause to be delivered (i) to the Company Seller an amount equal to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion Seller’s Pro Rata Share of the Estimated Total Equity Value to which such Seller or Merger Closing Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Proceeds, by wire transfer of immediately available funds to the account(s) designated by the Representative Seller; (ii) to each Minority Holder an amount equal to such Minority Holder’s Pro Rata Share of the Estimated Closing Cash Proceeds, by wire transfer of immediately available funds to the account(s) designated by each Minority Holder and (iii) to each In The Money Optionholder an amount equal to such In The Money Optionholder’s Pro Rata Share of the Estimated Closing Cash Proceeds minus the aggregate exercise price of the In The Money Options held by such In The Money Optionholder, by wire transfer of immediately available funds to the account(s) designated by the Seller (which, unless otherwise designated by the Seller in writing not less than three (3) Business Days prior to the Closing Date; providedClosing, that shall be paid to the payroll processing account of the Company and its Subsidiaries, from which the Company and its Subsidiaries shall distribute (and the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and cause the Company and its Subsidiaries to distribute) to each In The Money Option Holder its applicable amount pursuant to this clause (iii) on the Sellers shall take all actions reasonably required first normal payroll date following the Closing (and in connection therewithany event within 15 days of the Closing));
(cd) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesCompany, all amounts necessary to discharge fully the then-outstanding balance of all Indebtedness identified on the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateIndebtedness;
(e) the Purchaser shall deliver, or shall cause to be delivered, deliver the Purchase Price Adjustment Escrow Amount to the Representative Escrow Agent for deposit into an escrow account (the Representative Expenses by wire transfer of immediately available funds “Purchase Price Adjustment Escrow Account”) established pursuant to the account designated by terms of the Representative in writing not less than three (3) Business Days prior to the Closing DateEscrow Agreement;
(f) the Purchaser shall deliverpay, or shall cause to be deliveredon behalf of the Company, to the applicable payees the all Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Dateeach Person who is owed a portion thereof; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;and
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party the Company and each the Seller shall make such other deliveries as are required from such party by Article II hereofIII.
Appears in 1 contract
Sources: Stock Purchase Agreement (Intertape Polymer Group Inc)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller the Company and the Merger Sub shall (i) deliver to the Purchaser all cause a duly executed copy of the certificates (if any) evidencing Certificate of Merger to be filed with the Purchased Securities owned Secretary of State of the State of California and make all other filings or recordings required by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, California Law in blank or to connection with the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantMerger;
(b) the Purchaser shall deliver, deliver or cause to be delivered to the Company Escrow Agent an aggregate amount equal to deliver in the case of Stockholders’ Closing Consideration (for distribution by the Merger Cash Recipients, Escrow Agent to each Seller and each Merger Cash Recipient the aggregate portion Stockholder of such Stockholder’s Per Share Portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled Allocable Amount as determined in accordance with the Total Equity Value Allocation Certificate Section 2.02), by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithEscrow Agent;
(c) the Purchaser shall, as instructed by the Representative, deliver or cause to be delivered to the Company an aggregate amount equal to the Optionholders’ Closing Consideration (for distribution by the Company to each Optionholder of such holder’s portion of the Estimated Allocable Amount as determined in accordance with Section 2.04), by wire transfer of immediately available funds to the account(s) designated by the Representative;
(d) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesCompany, all Indebtedness identified on the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(de) the Purchaser shall deliver, or shall cause to be delivered, deliver the Indemnification Escrow Amount to the Escrow Agent for deposit into an escrow account (the “Indemnification Escrow Account”) established pursuant to the terms of the Escrow Agreement;
(f) the Purchaser shall deliver the Purchase Price Adjustment Escrow Amount to the Escrow Agent for deposit into an escrow account (the “Purchase Price Adjustment Escrow Account”) established pursuant to the terms of the Escrow Agreement;
(g) the Purchaser shall deliver the Specific Indemnity Escrow Amount to the Escrow Agent for deposit into an escrow account (the “Specific Indemnity Escrow Account”) established pursuant to the terms of the Escrow Agreement;
(h) the Purchaser shall deliver the Representative Holdback Amount by wire transfer of immediately available funds to the account account(s) designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateRepresentative;
(ei) the Purchaser shall deliverpay, or shall cause to be deliveredon behalf of the Company, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated Transaction Expenses, as directed by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(hj) the Purchaser, each Trilogy Party the Merger Sub, the Company and each Seller the Representative (on behalf of the Stockholders and Optionholders) shall make such other deliveries as are required from such party by Article II hereofIV. Upon Purchaser’s delivery to the Escrow Agent of an aggregate amount equal to the Stockholders’ Closing Consideration, Purchaser’s obligation to deliver such amount shall be satisfied in full, and Purchaser shall have no further liability to the Stockholders for such amounts.
Appears in 1 contract
Sources: Merger Agreement (Sparton Corp)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller Within 90 days following the Closing Date, ANDE shall deliver the amount set forth in Exhibit A attached hereto (ithe “Capital Contribution”) deliver to the Purchaser all of Surviving Company in immediately available funds adjusted to reflect the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment Closing Balance Sheet and transferthe, Adjusted Working Capital and CIP Statement calculated and prepared as set forth in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantSection 1.04(b);
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to Within 90 days following the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith;
(c) the Purchaser shall repayANDE will prepare, or cause to be repaidprepared, and deliver to Marathon an unaudited Closing Date balance sheet (the “Closing Balance Sheet”) along with all supporting schedules and computations and calculation of Adjusted Working Capital and Adjusted CIP (the “Adjusted Working Capital and CIP Statement”). The Closing Balance Sheet shall be prepared in accordance with GAAP applied on a basis consistent with its application in the preparation of the unaudited financial statements used to determine the Capital Contribution, except as otherwise required pursuant to this Agreement, while the Adjusted Working Capital and CIP Statement shall be calculated in accordance with Section 1.04(c).
(c) Upon receipt from ANDE, Marathon shall have 15 days to review the Adjusted Working Capital and CIP Statement (the “Review Period”). At all times during the Review Period, ANDE shall make information and personnel reasonably available to Marathon to provide information and answer questions regarding the computation of the Closing Date Balance Sheet and Adjusted Working Capital and Adjusted CIP. If Marathon disagrees with ANDE's computation of Adjusted Working Capital and Adjusted CIP, Marathon may, on behalf or prior to the last day of the Company and its SubsidiariesReview Period, the Indebtedness listed on Schedule 1.05(c) deliver a notice to ANDE (collectively, the “Funded IndebtednessNotice of Objection”), pursuant which sets forth its objections to ANDE’s calculation of Adjusted Working Capital and Adjusted CIP; provided that the Notice of Objection shall include only objections based on (i) non-compliance with the standards set forth in Section 8.01 for the determination of Adjusted Working Capital and Adjusted CIP, and (ii) mathematical errors in the computation thereof. Any Notice of Objection shall specify those items or amounts with which Marathon disagrees, together with a reasonably detailed written explanation of the reasons for disagreement with each such item or amount, and shall set forth Marathon's calculation of Adjusted Working Capital and Adjusted CIP based on such objections to the Payoff Letters by wire transfer of immediately available funds to extent that Marathon can based on ANDE’s computations. To the account(s) designated by the holders of such Closing Indebtedness extent not set forth in the Payoff LettersNotice of Objection, Marathon shall be deemed to have agreed with ANDE’s calculation of all other items and amounts contained in the funding for such repayment to be obtained first from the proceeds of Debt Financing Adjusted Working Capital and then, as necessary, from the proceeds of the Equity Financing;CIP Statement.
(d) Unless Marathon delivers the Purchaser Notice of Objection to ANDE within the Review Period, Marathon shall deliverbe deemed to have accepted ANDE's calculation of Adjusted Working Capital and Adjusted CIP and the Adjusted Working Capital and CIP Statement shall be final, conclusive and binding. If Marathon delivers the Notice of Objection to ANDE within the Review Period, Marathon and ANDE shall, during the 30 days following such delivery or any mutually agreed extension thereof, use commercially reasonable efforts to reach agreement on the disputed items and amounts in order to determine the amount of Adjusted Working Capital and Adjusted CIP. If, at the end of such period or any mutually agreed extension thereof, Marathon and ANDE are unable to resolve their disagreements, they shall cause jointly retain and refer their disagreements to be deliveredan independent accounting firm of national reputation selected by Marathon’s and ANDE’s respective independent certified public accountants (the “Independent Expert”). The parties shall instruct the Independent Expert promptly to review Sections 1.04(b), 1.04(c), and 8.01 and to determine solely with respect to the Escrow Agent disputed items and amounts so submitted whether and to what extent, if any, the Escrow Amount Adjusted Working Capital or Adjusted CIP set forth in the Adjusted Working Capital and CIP Statement requires correction. The Independent Expert shall base its determination solely on written submissions by wire transfer of immediately ANDE and Marathon and not on an independent review. ANDE and Marathon shall make available funds to the account designated Independent Expert all relevant books and records and other items reasonably requested by the Escrow Agent Independent Expert. The parties shall request that the Independent Expert deliver to ANDE and Marathon, as promptly as practicable but in writing not less no event later than three (3) Business Days prior 45 days after its retention, a report which sets forth its resolution of the disputed items and amounts and its calculation of Adjusted Working Capital and Adjusted CIP; provided that in no event shall the Adjusted Working Capital and Adjusted CIP as determined by the Independent Expert be outside the range of ANDE's calculation of Adjusted Working Capital and Adjusted CIP set forth in the Adjusted Working Capital and CIP Statement and Marathon's calculation of the Adjusted Working Capital and Adjusted CIP set forth in the Notice of Objection. The decision of the Independent Expert shall be final, conclusive and binding on the parties. The costs and expenses of the Independent Expert shall be allocated between the parties based upon the percentage of ownership in the Surviving Entity. Each Party agrees to execute, if requested by the Closing Date;Independent Expert, a reasonable engagement letter, including customary indemnities in favor of the Independent Expert.
(e) ANDE, Marathon and the Purchaser shall deliverMerging Entities, or shall cause to be deliveredas applicable, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereof.
Appears in 1 contract
Sources: Merger Agreement (Andersons, Inc.)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto Parties shall consummate the following transactions (at the “Closing Transactions”) on the Closing DateClosing:
(a) each Seller the Company and Merger Sub shall (i) deliver cause the Certificate of Merger to be executed, acknowledged and filed with the Purchaser all Secretary of State of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form State of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantDelaware;
(b) the Purchaser Company shall deliver to Parent a duly executed and completed statement meeting the requirements of Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that an interest in the Company is not a “United States real property interest”, together with notification to the Internal Revenue Service described in Treasury Regulation Section 1.897-2(h)(2) regarding delivery of the statement referred to in the preceding clause;
(c) in accordance with Section 2.4, Parent shall deliver, or cause to be delivered, the Company Closing Payment Amount to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Paying Agent by wire transfer of immediately available funds to the account(s) designated in writing by the Representative Paying Agent;
(d) in accordance with Section 2.3, Parent shall deliver, or cause to be delivered, to the Surviving Company the Per Share Closing Merger Consideration in respect of each Tax Withholding Share (assuming such shares were issued and outstanding) by wire transfer of immediately available funds to the account(s) designated in writing not less than three (3) by the Company at least two Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith;
(ce) in accordance with Section 2.3, Parent shall deliver, or cause to be delivered, to the Purchaser Escrow Agent the Optionholder Escrow Amount for the benefit of holders of Unvested Time Options, by wire transfer of immediately available funds to the Optionholder Escrow Account;
(f) in accordance with Section 2.5, Parent shall deliver, or cause to be delivered, to the Representative, the Representative Amount, by wire transfer of immediately available funds to the account designated in writing by the Representative at least two Business Days prior to the Closing Date;
(g) in accordance with Section 2.12, Parent shall deliver, or cause to be delivered, to the Escrow Agent the Adjustment Escrow Amount, by wire transfer of immediately available funds to the Adjustment Escrow Account;
(h) Parent shall repay, or cause to be repaid, on behalf of the DQ Companies, all amounts necessary to discharge fully the then outstanding balance of all Company and its SubsidiariesIndebtedness under the Credit Facility, the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in Company Indebtedness, and the Payoff Letters, the funding for such repayment Company shall deliver to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, Parent at or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;appropriate payoff letters and documentation evidencing the release of any Liens under the Credit Facility, in form and substance reasonably satisfactory to Parent, from the holders of such Company Indebtedness; and
(ei) the Purchaser Parent shall deliverpay, or shall cause to be deliveredpaid, to on behalf of the Representative Company, the Representative Company Transaction Expenses by wire transfer of immediately available funds to the account designated as directed by the Representative in writing not less than three (3) pursuant to invoices delivered to Parent at least two Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereof.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller the Company and the Merger Sub shall (i) deliver cause the Articles of Merger to be executed and filed with the Purchaser all Secretary of State of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form State of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantDelaware;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate holder of Company Stock such holder’s portion of the Estimated Total Equity Value to which such Seller or Common Merger Cash Recipient is entitled Consideration (as determined in accordance with the Total Equity Value Allocation Certificate Section 1.02(a)), by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithRepresentative;
(c) the Purchaser shall deliver to each Optionholder such holder’s portion of the Option Merger Consideration (as determined in accordance with Section 1.04), by wire transfer of immediately available funds to the account(s) designated by the Representative;
(d) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesCompany, all amounts necessary to discharge fully the then outstanding balance of all Funded Indebtedness listed (other than capital leases) outstanding as of the close of business on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant day immediately prior to the Payoff Letters Closing Date, by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateFunded Indebtedness;
(e) the Purchaser shall deliver, or shall cause to be delivered, deliver the Representative Holdback Amount to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing DateRepresentative;
(f) each Stockholder shall deliver to the Purchaser shall deliverone or more certificates, duly endorsed in blank or shall cause to be deliveredaccompanied by duly executed stock powers, to together with a duly executed Letter of Transmittal, representing the applicable payees the Transaction Expenses that remain unpaid number of shares of Company Stock held by such holder as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described Effective Time or affidavits of loss in clauses (ii) form and (vii) of the definition thereof shall be paid substance reasonably satisfactory to the Company for processing through its payrollPurchaser;
(g) the Company shall deliver pay the Deferred Bonus Amount to the Purchaser evidence that all Liens each Optionholder who is owed a portion thereof as set forth on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the ClosingDeferred Bonus Amount Schedule; and
(h) the Purchaser, each Trilogy Party the Merger Sub, the Company and each Seller the Representative (on behalf of the Stockholders and the Optionholders) shall make such other deliveries as are required from such party by Article II III hereof.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions on the Closing Date (the “Closing Transactions”) on the Closing Date:):
(a) each the Seller shall (i) deliver to the Purchaser (i) all of the certificates (if any) evidencing the Purchased Securities owned by such Seller Membership Interests duly endorsed for transfer or accompanied by duly executed security transfer powers or other form forms of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaseras applicable, all as reasonably acceptable to the Purchaser and (ii) all books and records and other property of the Company and each of its Subsidiaries in the case of any Seller who is a Warrantholder, surrender Seller’s possession or under the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantSeller’s control;
(b) the Purchaser shall deliver(i) deliver to the Seller an amount in cash equal to (x) the Cash Consideration, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) designated by the Representative Seller (which account(s) shall be designated by the Seller to the Purchaser in writing not less than at least three (3) Business Days prior to before the Closing Date; provided) and (ii) issue or transfer, that the Purchaser shall or cause to be entitled to engage a paying agent to effect any payments issued or transferred, to the Sellers under this AgreementSeller the number of Purchaser Shares issuable as the Stock Consideration pursuant to the terms hereof, and which may be represented by one or more certificates at the Company and the Sellers shall take all actions reasonably required in connection therewithPurchaser’s election;
(c) the Company shall deliver to the Purchaser payoff letters with respect to any Company Indebtedness set forth on Schedule 1.05(c) (the “Company Indebtedness Payoff Schedule”) outstanding as of the Closing (in each case, in a form reasonably satisfactory to the Purchaser), which, subject to Section 1.05(d), shall provide for the releases of any Liens (other than any Company Permitted Liens) related to the assets and properties of the Company and its Subsidiaries;
(d) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of the Company Indebtedness listed set forth on an updated Company Indebtedness Payoff Schedule 1.05(c) (collectively, that shall be delivered by the “Funded Indebtedness”), pursuant Seller or the Company to the Payoff Letters Purchaser at least three (3) Business Days prior to the Closing Date by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateCompany Indebtedness;
(e) the Purchaser and the Seller shall deliver, or shall cause execute and deliver to be delivered, to each other the Representative Shareholders Agreement in the Representative Expenses by wire transfer of immediately available funds to form attached hereto as Exhibit A (the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date“Shareholders Agreement”);
(f) the Purchaser shall deliver, or use its reasonable best efforts to cause each director and officer of the Purchaser to execute and deliver a Lock-up Agreement in the form attached hereto as Exhibit B;
(g) the Seller shall cause to be delivered, deliver to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three Purchaser at least ten (310) Business Days prior to the Closing Date; provided, that Date such information concerning the Transaction Expenses described in clauses Seller as the Purchaser’s registrar and transfer agent may reasonably request at least fifteen (ii15) and (vii) of the definition thereof shall be paid Business Days prior to the Company for processing through its payroll;
(g) Closing Date in order to issue or transfer the Company shall deliver Purchaser Shares to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the ClosingSeller; and
(h) the PurchaserPurchaser and the Seller or the Company, each Trilogy Party and each Seller as applicable, shall make such other deliveries as are required from such party by Article II hereof.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Tenneco Inc)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto Parties shall consummate the following transactions (the “Closing Transactions”) on at the Closing DateClosing:
(a) each Seller the Company and the Merger Sub shall (i) deliver cause the Certificate of Merger to be executed, acknowledged and filed with the Purchaser all Secretary of State of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form State of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantDelaware;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with Section 1.04, the Total Equity Value Allocation Certificate Parent shall deliver the Closing Payment Amount set forth on the Estimated Closing Statement to the Representative, by wire transfer of immediately available funds to the account(s) designated in writing by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithRepresentative;
(c) in accordance with Section 1.05, the Purchaser Parent shall deliver to the Representative the Representative Amount, by wire transfer of immediately available funds to the account(s) designated in writing by the Representative;
(d) the Parent shall deposit the General Indemnity Escrow Amount into the General Indemnity Escrow Account, the Tax Indemnity Escrow Amount into the Tax Indemnity Escrow Account, the Litigation Indemnity Escrow Amount into the Litigation Indemnity Escrow Account, the Appraisal Indemnity Escrow Amount into the Appraisal Indemnity Escrow Account and the Adjustment Escrow Amount into the Adjustment Escrow Account, each in accordance with the Escrow Agreement;
(e) the Parent shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesGroup Companies, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness listed on Schedule 1.05(c) (collectivelyunder the Credit Agreement, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(df) the Purchaser The Company shall deliver, or shall cause to be delivered, deliver to the Escrow Agent Parent a duly executed certificate, in form and substance as prescribed by Treasury Regulations promulgated under Code Section 1445, stating that the Company is not, and has not been, during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States real property holding corporation” within the meaning of Section 897(c) of the Code;
(g) The Company shall deliver to the Parent the Escrow Amount by wire transfer of immediately available funds to the account designated Agreement duly executed by the Escrow Agent in writing not less than three (3) Business Days prior to and the Closing DateRepresentative;
(eh) The Parent shall deliver to the Company the Escrow Agreement duly executed by the Parent; and
(i) the Purchaser Parent shall deliverpay, or shall cause to be deliveredpaid, to on behalf of the Representative Company, the Representative Transaction Expenses by wire transfer of immediately available funds as directed by the Representative, other than any amounts pursuant to the account designated by the Representative in writing Transaction Bonus Plan that do not less than three (3) Business Days prior to become payable until after the Closing Date;
Date (f) the Purchaser which amounts shall deliver, be paid or shall cause to be deliveredpaid by the Parent pursuant to Section 6.06(b)). In the event that the Preferred Shareholders are entitled to receive distributions from an Escrow Account or pursuant to Section 1.05, such amounts shall be reduced by the amount of any additional payments due under the Transaction Bonus Plan on account of such distributions and delivered to the applicable payees Surviving Company for distribution to the participants of the Transaction Expenses that remain unpaid as of Bonus Plan and the Closing by wire transfer of immediately available funds remainder delivered to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior Representative for distribution to the Closing Date; provided, that the Transaction Expenses described Preferred Shareholders in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereofaccordance with this Agreement.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each the Seller shall deliver or cause to be delivered to the Purchaser:
(i) deliver to the Purchaser all of the stock certificates (if any) evidencing the Purchased Securities owned by such Seller Shares, duly endorsed for transfer or accompanied by duly executed security transfer stock powers or other form of assignment and transfer, an express indemnity in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) Agreed Form in the case of any certificate found to be missing;
(ii) a letter of resignation in the Agreed Form from Seller who is Shareholder as an officer and director of any Member of the Company Group;
(iii) evidence that all intercompany liabilities between the Company Group, on one hand, and the Seller and its Affiliates and their respective family members, on the other hand, have been settled; and
(iv) a Warrantholder, surrender copy of the Warrant held by such Seller for cancellation; provided, that in lieu resolutions of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by board of directors of the Purchaser, Acquired Company approving the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;transactions contemplated hereby.
(b) the Purchaser shall deliver, or cause deliver to the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with Purchase Price less the Total Equity Value Allocation Certificate Indemnity Escrow Amount by wire transfer of immediately available funds to the account(s) designated by the Representative Seller (which account(s) shall be designated by the Seller to the Purchaser in writing not less than three (3) Business Days prior to at least two business days before the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith);
(c) the Acquired Company shall deliver to the Purchaser appropriate payoff letters from the holders of Indebtedness set forth on the Indebtedness Payoff Schedule attached hereto;
(d) the Purchaser shall repay, or cause to be repaid, on behalf of the Company Group and its Subsidiaries, the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the payoff letters delivered pursuant to Section 1.04(c), all amounts necessary to discharge fully the then outstanding balance of the Indebtedness set forth on the Indebtedness Payoff Letters Schedule, by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(de) the Purchaser shall deliver, or pay on behalf of the Company Group the Estimated Company Transaction Expenses;
(f) the Purchaser shall cause to be delivered, to deliver the Escrow Agent the Indemnity Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payrollAgent;
(g) the Company Group shall deliver to provide evidence that the Acquired Company has taken such actions, approved by the Purchaser evidence that (such approval not to be unreasonably withheld), as required by Treasury Regulation § 1.409A-3(j)(4)(ix)(B) to provide for (a) termination of the Sentel Corporation Deferred Compensation Plan and any other plan required to be aggregate with such plan under Code Section 409A (collectively, “SENTEL DCPs”); (b) removal of all Liens on special post-change in control provisions from the Company’s assets securing Funded Indebtedness SENTEL DCPs; and (in each case, other than Permitted Liensc) shall be released upon the payment of all benefits due under the Funded Indebtedness SENTEL DCPs on or otherwise upon as soon as practical after the Closing; andClosing Date;
(h) the PurchaserAcquired Company shall pay to the employees, each Trilogy Party former employees, and each independent consultants of the Members of the Company Group (i) all annual bonuses and other bonuses relating to periods ending on the Closing Date and (ii) all bonuses and other payments, including payments under Management Incentive Interest Award Agreements, relating to the consummation of the transactions contemplated by this Agreement; and
(i) the Purchaser and the Seller shall make such other deliveries as are required from such party by Article II hereof.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto Parties shall consummate the following transactions (the “Closing Transactions”) on at the Closing DateClosing:
(a) each Seller the Company and the Merger Sub shall (i) deliver cause the Certificate of Merger to be executed, acknowledged and filed with the Purchaser all Secretary of State of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form State of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantDelaware;
(b) in accordance with Section 1.03, the Purchaser Parent shall deliver, or cause to be delivered, the Company to deliver Closing Option Consideration set forth in the case Estimated Closing Statement to the Company, for the benefit of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion holders of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate In-the-Money Options by wire transfer of immediately available funds to the account(s) account designated in writing by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithCompany;
(c) the Purchaser Parent shall deposit, or caused to be deposited, the Escrow Amount into the applicable Escrow Accounts in accordance with the Escrow Agreement;
(d) the Parent shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesGroup Companies, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to as set forth in the Payoff Letters Letters, by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(de) The Company shall have delivered to the Parent each of the following:
(i) certified copies of resolutions of the requisite shareholders of the Company for the shareholder approval approving the consummation of the transactions contemplated by this Agreement;
(ii) certified copies of resolutions duly adopted by the Company’s board of directors authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby, and the consummation of all transactions contemplated hereby and thereby;
(iii) the Purchaser Escrow Agreement, duly executed by the Representative;
(iv) Fully executed customary payoff letters, reasonably acceptable to Parent, in connection with the repayment of all Indebtedness, including the Indebtedness outstanding under the Credit Agreements (collectively, the “Payoff Letters”), which payoff letters shall include provisions that require each lender to deliver, or shall cause to be delivered, subject to the Escrow Agent receipt of the Escrow Amount by wire transfer of immediately available funds applicable payoff amounts, customary Lien releases to the account designated by Parent effective as upon receipt of the Escrow Agent in writing requisite payoff amount;
(v) a certification, signed under penalties of perjury, stating that the Company is not less and has not been a United States real property holding corporation within the meaning of Section 897 of the Code, dated as of the Closing Date sufficient to comply with Treasury Regulation § 1.897-2(h);
(vi) certificate of the Secretary of State of the state of incorporation or formation, dated no earlier than three five (35) Business Days days prior to the Closing Date, as to the legal existence and good standing of the Company and each of its Subsidiaries in such jurisdictions;
(evii) duly executed Certificate of Merger by the Company;
(viii) all consents and approvals set forth on Schedule 2.02(e)(viii);
(ix) duly executed Option Cancellation Acknowledgment from each holder of In-The-Money Options;
(x) duly executed Letter of Transmittal from each holder of Common Stock;
(xi) documentation evidencing the termination of the agreements set forth on Schedule 2.02(e)(xi).
(f) The Parent shall have delivered to the Company each of the following:
(i) certified copies of resolutions of the requisite holders of the voting shares of the Merger Sub approving the consummation of the transactions contemplated by this Agreement;
(ii) certified copies of the resolutions duly adopted by the Parent’s board of directors (or its equivalent governing body) and the Merger Sub’s board of managers authorizing the execution, delivery and performance of this Agreement;
(iii) the Purchaser Escrow Agreement, duly executed by the Parent; and
(iv) duly executed Certificate of Merger by the Merger Sub.
(g) the Parent shall deliverpay, or shall cause to be deliveredpaid, to on behalf of the Representative Company, the Representative Transaction Expenses by wire transfer of immediately available funds to the account designated as directed by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the ClosingRepresentative; and
(h) the PurchaserParent shall pay, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereofor cause to be paid, that portion of the Common Stock Merger Consideration that is payable pursuant to Section 1.04.
Appears in 1 contract
Sources: Merger Agreement (Foster L B Co)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto Parties and Parent shall consummate the following transactions (at the “Closing Transactions”) on the Closing DateClosing:
(ai) each if the Sold Shares are certificated, Seller shall (i) deliver to the Purchaser all of the stock certificates (if anyor local legal equivalent) evidencing the Purchased Securities owned Sold Shares to be sold by such Seller duly endorsed for transfer in blank, or accompanied by stock powers duly executed security transfer powers or other form of assignment and transferin blank, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) if the Sold Shares are not certificated, stock powers duly executed in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it blank with respect to such lost certificate or Warrantthe Sold Shares;
(b) the Purchaser Parent shall deliverprovide, or cause the Company to deliver in the case on behalf of Buyer, evidence of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion issuance of the Estimated Total Equity Value Consideration in book-entry form to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithSeller;
(c) Buyer shall deposit the Purchaser Escrow Amount into the Escrow Account in accordance with the Escrow Agreement;
(d) Buyer shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesGroup Companies, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness listed on Schedule 1.05(c) (collectively, under the “Funded Indebtedness”), pursuant to Credit Agreements as set forth in the Payoff Letters Letters, by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the applicable Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(de) the Purchaser each of Buyer and Seller shall delivermake such other deliveries as are required by Article VII hereof;
(f) Buyer shall pay, or shall cause to be deliveredpaid, to on behalf of the Escrow Agent Group Companies, the Escrow Amount Transaction Expenses set forth in the Estimated Closing Statement, by wire transfer of immediately available funds to the account designated as directed by the Escrow Agent in writing not less than Seller at least three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the anticipated Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;and
(g) Buyer shall pay the Company shall deliver Closing Cash Payment to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liensaccount(s) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party designated by Article II hereofSeller.
Appears in 1 contract
The Closing Transactions. Subject to Upon the terms and conditions set forth in this Agreement, upon execution and delivery of this Agreement, the parties hereto shall consummate the following transactions (the “"Closing Transactions”") on at the Closing DateClosing:
(a) each Seller the Company and the Merger Sub shall (i) deliver cause the Certificate of Merger to be executed, acknowledged and filed with the Purchaser all Secretary of State of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form State of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantDelaware;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Stockholder by wire transfer of immediately available funds to the account(s) designated by such Stockholder or by check to the Representative address specified by such Stockholder, in writing not less than three (3) Business Days each case upon delivery by such Stockholder of one or more Certificates representing the number of shares of Common Stock held by such Stockholder as of immediately prior to the Closing Date; providedEffective Time, that together with a duly executed Letter of Transmittal, the Purchaser shall be entitled to engage a paying agent to effect any payments portion of the Merger Consideration (as determined in accordance with Section 1.02(a)) allocable to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithshares of Common Stock represented by such Certificate(s);
(c) the Purchaser shall repay, or cause to be repaid, repay on behalf of the Company Surviving Corporation and its Subsidiaries, or cause the Indebtedness listed on Schedule 1.05(c) (collectivelySurviving Corporation to repay, all amounts necessary to discharge fully the “then outstanding balance of all Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Funded Indebtedness in pursuant to payoff letters (the "Payoff Letters") providing, subject to the funding payment of payoff amounts identified therein, for each holder of such repayment Funded Indebtedness to be obtained first from the proceeds of Debt Financing release all Liens on any assets and then, as necessary, from the proceeds securities of the Equity Financing;Company and its Subsidiaries; and
(d) the Purchaser shall deliverrepay on behalf of the Surviving Corporation and its Subsidiaries, or shall cause the Surviving Corporation to be deliveredrepay, all amounts necessary to discharge fully the Escrow Agent the Escrow Amount then outstanding balances of all Company Transaction Expenses, by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3account(s) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the of such Company Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;Expenses.
(ge) the Company shall deliver to the Purchaser evidence a certificate, validly executed by the Chief Financial Officer of the Company for and on its behalf, to the effect that:
(i) that all Liens on the schedule attached thereto represents the Company’s assets securing Funded Indebtedness ('s accounting of the total Company Transaction Expenses, together with an itemization and description of such Company Transaction Expenses in each casereasonable detail and certifying, to the knowledge of such officer, that no other than Permitted Liens) Company Transaction Expenses shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closingdue and payable; and
(hii) the Purchaserschedule attached thereto shows a true and correct comparison of the projected working capital of the Company and its Subsidiaries as of April 2, each Trilogy Party 2006 as compared to a good faith estimate of the actual working capital of the Company and each Seller shall make its Subsidiaries as of such other deliveries as are required from such party by Article II hereofdate, determined on a basis consistent with the methodology used in preparing the projections.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller shall (i) deliver to Purchaser the Purchaser all of certificate representing the certificates (if any) evidencing the Purchased Securities owned by such Seller Stock, duly endorsed in blank for transfer or accompanied by duly a executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrantstock powers;
(b) the Purchaser shall deliverpay, or cause the Company to deliver in the case of the Merger Cash Recipientsbe paid, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Purchase Price by wire transfer of immediately available funds to the account(s) designated by the Representative Seller (which account(s) shall be designated by Seller to Purchaser in writing not less at least three (3) Business Days before the Closing Date);
(c) no fewer than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and shall deliver to Purchaser the Sellers shall take all actions reasonably required in connection therewithPayoff Letters;
(cd) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of all Estimated Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to as set forth in the Payoff Letters Letters, by wire transfer of immediately available 33067829.14 funds to the account(s) designated by the holders of such Closing Estimated Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(de) the Purchaser shall deliverpay, or shall cause to be deliveredpaid, to the Escrow Agent the Adjustment Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateAgent;
(ef) the Purchaser shall deliverpay, or shall cause to be deliveredpaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the Representative then-outstanding balance of all Estimated Transaction Expenses and Botanist Transaction Expenses that were not included in the Representative Expenses Botanist Cash Amount, by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be deliveredfunds, to the applicable payees the account(s) designated by each Person to whom such Estimated Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds or Estimated Botanist Transaction Expenses are to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Datebe paid; provided, that the any Estimated Transaction Expenses described in clauses (ii) and (vii) or Estimated Botanist Transaction Expenses treated as wages or other compensation for services to a current or former employee of the definition thereof Company shall be paid to the Company for processing Company, which shall pay such amounts, less applicable withholding Taxes, to the applicable recipient through its payroll;payroll system on the first payroll date following the Closing Date or, if later for a particular recipient, the first payroll date occurring after any release required to be signed by the recipient in connection with such payment becomes effective by its terms; and
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereofARTICLE 2 thereof.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller shall deliver to Purchaser evidence satisfactory to Purchaser that either (i) deliver to Purchaser or its nominee(s) have been entered upon the Purchaser all books of Holdings as the sole holder of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer Shares or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) Seller shall have appointed Purchaser as its attorney in fact to effectuate the case transfer of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;Shares.
(b) the Purchaser shall deliver, or cause the Company deliver to deliver Seller an amount in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior cash equal to the Closing Date; provided, that Payment Amount (less the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith;
(cClosing Share Consideration Amount) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent Seller (which account(s) shall be designated to Purchaser in writing not less than three (3) at least two Business Days prior before the Closing Date).
(c) Purchaser shall cause to be issued to as to Seller the number of Purchaser Parent Common Shares equal to the Closing Share Consideration.
(d) In accordance with payoff letters delivered to Purchaser by the Company, Purchaser shall pay, or cause to be paid, all amounts necessary to discharge fully the then outstanding balance (if any) of all of the Estimated Company Indebtedness, to the account(s) designated by the holders of such Estimated Company Indebtedness (which account(s) shall be designated to Purchaser in writing at least two Business Days before the Closing Date;), following which the Company shall make arrangements reasonably satisfactory to Purchaser for such holders of Company Indebtedness to deliver all related Lien releases to Purchaser as soon as practicable after the Closing.
(e) the Purchaser shall deliverpay, or shall cause to be deliveredpaid, to on behalf of the Representative Company and its Subsidiaries, the Representative portion of the Estimated Seller Expenses payable at Closing, by wire transfer of immediately available funds to the account designated funds, in accordance with instructions delivered by the Representative Seller in writing not less than three (3) Business Days prior to the Closing Date;Closing.
(f) Seller shall deliver to Purchaser an assignment agreement in the form attached hereto as Exhibit E, duly executed by Seller and its Affiliates, evidencing the designation by Seller and its Affiliates of Holdings as their nominee entitled to exercise the Warrant Repurchase and including a form letter of transmittal to be provided to the holders of the Warrants setting forth deemed releases by the holders of the Warrants in favor of each of the Company, Holdings and the Purchaser shall deliver, from any obligation or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as liability in respect of the Closing by wire transfer of immediately available funds to Warrants from and after the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) consummation of the definition thereof shall be paid to the Company for processing through its payroll;Warrant Repurchase.
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereofhereof (other than the delivery of such items which have been duly waived).
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto Parties shall consummate the following transactions (at the “Closing Transactions”) on the Closing DateClosing:
(a) each Seller the Company and Merger Sub shall (i) deliver cause the Certificate of Merger to be executed, acknowledged and filed with the Purchaser all Secretary of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form State of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;Delaware.
(b) the Purchaser Company shall deliver, or cause to be delivered, to Parent:
(i) a copy of the duly executed Stockholder Consent reflecting the Required Company Stockholder Approval;
(ii) a counterpart to the Escrow Agreement, duly executed by the Representative;
(iii) a duly executed certificate that satisfies the requirements of Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), certifying that no interest in the Company is or has been a “United States real property interest” as defined in Section 897 of the Code during the period specified in Section 897(c)(1)(A)(ii) of the Code and a notice form that meets the requirements of Treasury Regulations Section 1.897-2(h)(2), along with written authorization for Parent to deliver in such notice form to the case IRS behalf of the Merger Cash RecipientsCompany upon the Closing;
(iv) a counterpart to the Registration Rights Agreement, duly executed by each Company Stockholder comprising the Required Company Stockholder Approval;
(v) a counterpart to each Seller and Employment Agreement, duly executed by the applicable Key Employee;
(vi) a counterpart to the Restricted Stock Agreement, duly executed by each Merger Cash Recipient the aggregate portion Key Employee;
(vii) a copy of the Estimated Total Equity Value duly executed D&O “tail” policy obtained pursuant to which such Seller or Merger Cash Recipient is entitled Section 5.11(b);
(viii) copies of duly executed Company SAFE Surrender Agreements in accordance with Section 1.4; and
(ix) one or more Payoff Letters in respect of the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith;Debt Payoff Amount.
(c) the Purchaser shall Parent shall:
(i) repay, or cause to be repaid, on behalf of the Company and its SubsidiariesCompany, the Indebtedness listed on Schedule 1.05(c) (collectively, Debt Payoff Amount in respect of the “Funded Indebtedness”), Specified Debt for which Payoff Letters have been delivered pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingSection 2.2(b)(ix);
(dii) deposit, or cause to be deposited, with the Purchaser shall Exchange Agent cash in an amount equal to the aggregate Closing Cash Consideration allocable to Company Securityholders (less the cash amounts payable pursuant to Section 2.2(c)(iii)), any cash payable in lieu of fractional shares in accordance with Section 1.5(j) and evidence of shares in book-entry form of Parent Common Stock in the amount of the Closing Stock Consideration allocable to Company Securityholders (the “Exchange Fund”);
(iii) deliver, or shall cause to be delivered, for the benefit of the holders of In-the-Money Options and the Phantom Award Individuals, the aggregate amount of cash due at the Closing in respect of such In-the-Money Options pursuant to Sections 1.3(b) and 1.3(c) as set forth in the Escrow Agent the Escrow Amount Allocation Certificate, by wire transfer of immediately available funds to the account designated in writing by the Company no less than two (2) Business Days prior to the Closing Date;
(iv) deposit, or cause to be deposited, with the Escrow Agent (A) $4,000,000 (the “Adjustment Escrow Amount”) into an escrow account (the “Adjustment Escrow Account”) as the primary source for the adjustment of the Closing Consideration pursuant to Section 1.8(b) and the terms and conditions of an escrow agreement (the “Escrow Agreement”) by and among Parent, the Representative and BOKF, N.A. (the “Escrow Agent”), substantially in writing not the form of Exhibit J and (B) the Unvested Option Escrow Amount (together with the Adjustment Escrow Amount, the “Escrow Amount”) in to a separate escrow account (the “Unvested Option Escrow Account” and, together with the Adjustment Escrow Account, the “Escrow Account”) to be distributed pursuant to the terms of Section 1.3(c);
(v) deliver, or cause to be delivered, to the Representative the Representative Holdback Amount by wire transfer of immediately available funds to an account designated by the Representative no less than three (3) Business Days prior to the Closing Date;
(evi) the Purchaser shall deliverpay, or shall cause to be deliveredpaid, to on behalf of the Representative the Representative Company, any unpaid Transaction Expenses by wire transfer of immediately available funds to the an account or accounts designated by the Representative in writing not Company no less than three (3) Business Days prior to the Closing Date;
(fvii) a counterpart to the Purchaser shall Registration Rights Agreement, duly executed by P▇▇▇▇▇;
(viii) a counterpart to each Employment Agreement, duly executed by P▇▇▇▇▇;
(ix) a counterpart to the Restricted Stock Agreements, duly executed by P▇▇▇▇▇; and
(x) deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds Company a counterpart to the accounts designated Escrow Agreement, duly executed by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereofP▇▇▇▇▇.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (at the “Closing Transactions”) on the Closing DateClosing:
(a) each Seller shall (i) deliver to the Purchaser all of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipientsbe delivered, to each Seller and each Merger Cash Recipient the aggregate portion of Seller, an amount equal to the Estimated Total Equity Value to which such Seller or Merger Closing Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Proceeds, by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithSeller;
(cb) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesCompany, all amounts necessary to discharge fully the then-outstanding balance of all Indebtedness identified on the Indebtedness listed on Schedule 1.05(c(the "Payoff Indebtedness") (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness pursuant to and in accordance with the Debt Payoff Letters;
(c) the Purchaser shall pay, the funding for such repayment or cause to be obtained first from the proceeds of Debt Financing and thenpaid, as necessary, from the proceeds on behalf of the Equity FinancingCompany, all Transaction Expenses to each Person who is owed a portion thereof; provided that all compensatory payments to the Company's or its Subsidiaries' employees shall be made through payroll on the first payroll date following the Closing;
(d) the Purchaser shall deliver, or shall cause to be delivered, deliver the Purchase Price Adjustment Escrow Amount to the Escrow Agent for deposit into an escrow account (the "Purchase Price Adjustment Escrow Account") established pursuant to the terms of the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateAgreement;
(e) the Purchaser shall deliver, or shall cause to be delivered, deliver the Indemnification Escrow Amount to the Representative Escrow Agent for deposit into an escrow account (the Representative Expenses by wire transfer of immediately available funds "Indemnification Escrow Account") established pursuant to the account designated by terms of the Representative in writing not less than three (3) Business Days prior to the Closing Date;Escrow Agreement; and
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller parties hereto shall make such other deliveries as are required from such party by Article II hereofIII.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller shall (i) deliver to the Purchaser all of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipientsbe delivered, to each Seller and each Merger Cash Recipient the aggregate portion of Seller, an amount equal to the Estimated Total Equity Value to which such Seller or Merger Closing Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Proceeds, by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three Seller;
(3b) Business Days prior to the Closing Date; provided, that the Purchaser shall deliver, or cause to be entitled to engage a paying agent to effect any payments delivered, to the Sellers under this Agreement, Seller (i) the Closing Stock Consideration in book-entry form on the Purchaser’s transfer agent’s books and (ii) evidence of the Company and registration of the Sellers shall take all actions reasonably required Closing Stock Consideration in connection therewiththe Seller’s or its nominee’s name on the Purchaser’s transfer agent’s books;
(c) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesCompany, all amounts necessary to discharge fully the then-outstanding balance of all Indebtedness listed identified on Schedule 1.05(c2.03(c) (collectively, the “Funded Repaid Indebtedness”), pursuant to the Payoff Letters ) by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness; provided, that any Repaid Indebtedness in payable to any current or former employee of the Payoff LettersCompany or any of its Subsidiaries shall be paid to the Company or its payroll agent for further payment to such applicable employee(s) through payroll, the funding for such repayment to be obtained first from the proceeds of Debt Financing and thenless applicable withholdings, as necessary, from soon as reasonably practicable after the proceeds of the Equity FinancingClosing Date in accordance with Section 8.06;
(d) the Purchaser shall deliverpay, or shall cause to be deliveredpaid, on behalf of the Company, all Transaction Expenses to each Person who is owed a portion thereof in accordance with the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateFinal Invoices;
(e) the Purchaser shall deliver, or shall cause to be delivered, deliver the Purchase Price Adjustment Escrow Amount to the Representative Escrow Agent for deposit into an escrow account (the Representative Expenses by wire transfer of immediately available funds “Purchase Price Adjustment Escrow Account”) established pursuant to the account designated by terms of the Representative in writing not less than three (3) Business Days prior to the Closing Date;Escrow Agreement; and
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller parties hereto shall make such other deliveries as are required from such party by Article II hereofIII.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each the Blocker I Seller shall (i) deliver deliver, or cause to be delivered, to the Blocker Purchaser all of the certificates issued and outstanding Blocker I Equity, free and clear of all Liens (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for other than restrictions on transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrantarising under applicable securities Laws);
(b) the Purchaser Blocker II Seller shall deliver, or cause to be delivered, to the Blocker Purchaser all of the issued and outstanding Blocker II Equity, free and clear of all Liens (other than restrictions on transfer arising under applicable securities Laws);
(c) the Blocker III Seller and the Blocker IV Seller shall deliver, or cause to be delivered, to the Blocker Purchaser (i) all of the Direct Sale Units and (ii) all of the issued and outstanding Blocker III Equity, free and clear of all Liens (other than restrictions on transfer arising under applicable securities Laws);
(d) the Blocker IV Seller shall deliver, or cause to be delivered, to the Blocker Purchaser all of the issued and outstanding Blocker IV Equity, free and clear of all Liens (other than restrictions on transfer arising under applicable securities Laws);
(e) the Blocker V Seller shall deliver, or cause to be delivered, to the Blocker Purchaser all of the issued and outstanding Blocker V Equity, free and clear of all Liens (other than restrictions on transfer arising under applicable securities Laws);
(f) the Blocker VI Seller shall deliver, or cause to be delivered, to the Blocker Purchaser all of the issued and outstanding Blocker VI Equity, free and clear of all Liens (other than restrictions on transfer arising under applicable securities Laws);
(g) the Company to deliver in and the case Merger Sub shall cause a duly executed copy of the Merger Cash Recipients, Certificate of ▇▇▇▇▇▇ to each Seller and each Merger Cash Recipient be filed with the aggregate portion Secretary of State of the Estimated Total Equity Value State of Delaware and make all other filings or recordings required by Delaware Law in connection with the Merger;
(h) the Purchaser shall deliver or cause to which such be delivered to the Paying Agent the following: (i) an aggregate amount equal to the Blocker Sellers’ Closing Consideration and the Direct Sale Consideration (for distribution by the Paying Agent to the Blocker Sellers and Direct Seller or Merger Cash Recipient is entitled as determined in accordance with Section 2.01) and (ii) an aggregate amount equal to the Total Equity Value Allocation Certificate Unitholders’ Closing Consideration (for distribution by the Paying Agent to each Unitholder (other than the Blockers and other than with respect to the Direct Sale Units)), in each case by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three Paying Agent;
(3i) Business Days prior to the Closing Date; provided, that the Purchaser shall deliver or cause to be entitled to engage a paying agent to effect any payments delivered an amount equal to the Sellers under this AgreementAdjustment Escrow Amount to the Escrow Agent, and by wire transfer of immediately available funds to the Company and the Sellers shall take all actions reasonably required in connection therewithEscrow Account;
(cj) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesCompany, all amounts necessary to discharge fully the then-outstanding balance of all Indebtedness identified on the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(dk) the Purchaser shall deliverpay, on behalf of the Company, all Transaction Expenses (other than Transaction Expenses that are compensatory payments to employees or other service providers of the Company or its Subsidiaries) to each Person that is owed a portion thereof;
(l) the Purchaser shall cause to be delivered, to deliver the Escrow Agent the Escrow Representative Holdback Amount by wire transfer of immediately available funds to the account account(s) designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateRepresentative;
(em) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the The Company shall deliver to the Purchaser evidence that the Payoff Letters and UCC-3 financing statements with respect thereto terminating all Liens on arising in connection with the Company’s assets securing Funded Indebtedness (Credit Facilities, in each case, other than Permitted Liens) shall be released upon duly executed and delivered by the payment of required parties under the Funded Indebtedness or otherwise upon the ClosingCredit Facilities; and
(hn) the Purchaser, each Trilogy Party and each Seller parties hereto shall make such other deliveries as are required from such party by Article II hereofIV.
Appears in 1 contract
Sources: Equity Purchase and Merger Agreement (Roper Technologies Inc)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller shall (i) deliver to the Purchaser all of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transferin accordance with Section 1.02, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause deliver to PF Corp an amount in cash equal to the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Preferred Stock Consideration by wire transfer of immediately available funds to the account(s) designated by the Representative Ultimate Parent;
(b) in writing not less than three (3) Business Days prior accordance with Section 1.02, the Purchaser shall deliver to Celdis an amount in cash equal to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith;
(c) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters Cash Consideration by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in Ultimate Parent;
(c) the Payoff LettersSellers shall deliver to the Purchaser the stock certificates representing the Shares, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financingaccompanied by duly executed stock powers;
(d) the Purchaser, the Company and the Sellers shall make such other deliveries as are required by Article III hereof;
(e) simultaneously with the Closing, the Purchaser shall deliverpay, or shall cause to be deliveredpaid, on behalf of the Sellers and the Company (as applicable), all amounts necessary to discharge fully the then outstanding balance of all Indebtedness of the Company and its Subsidiary (other than Indebtedness of the Company or its Subsidiary referenced in clause (vii) of the definition of Indebtedness to the Escrow Agent extent released as of the Escrow Amount Closing), by wire transfer of immediately available funds to in accordance with the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DatePayoff Letters;
(ef) simultaneously with the Closing, the Purchaser shall deliverpay, or shall cause to be deliveredpaid, to on behalf of the Representative Sellers and the Representative Company (as applicable), the Transaction Expenses by wire transfer of immediately available funds to the account designated as directed by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing DateSellers; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;and
(g) the Company shall execute and deliver to the Purchaser evidence a certificate in the form attached hereto as Exhibit A, certifying that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liensshares of Company Common Stock and Company Preferred Stock are not United States real property interests within the meaning of Section 897(c) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the PurchaserCode, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereofapplicable.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (at the “Closing Transactions”) on the Closing DateClosing:
(a) each Seller the Sellers shall (i) deliver to the Purchaser all of the certificates (certificates, if any) , evidencing the Purchased Securities owned by such Seller Shares, free and clear of all Liens (other than Liens arising under applicable securities Laws), duly endorsed for transfer in blank or accompanied by duly executed security transfer stock powers or other form applicable forms of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser Sellers shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) designated by Purchaser the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Warrant Cancellation Agreement, and duly executed by the Company and the Sellers shall take all actions reasonably required in connection therewithFalcon;
(c) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesCompany, all amounts necessary to discharge fully the then-outstanding balance of all Indebtedness identified on the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded IndebtednessPayoff Amount”), pursuant to the Payoff Letters ) by wire transfer of immediately available funds to the account(s) designated in writing by the holders of such Closing Indebtedness pursuant to and in accordance with the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, deliver the Purchase Price Adjustment Escrow Amount to the Escrow Agent for deposit into an escrow account (the “Purchase Price Adjustment Escrow Account”) established pursuant to the terms of the Escrow Amount Agreement;
(e) the Purchaser shall pay, on behalf of the Company, all Transaction Expenses (other than Transaction Expenses that are compensatory payments to employees or other service providers of the Company or its Subsidiaries) to each Person who is owed a portion thereof;
(f) the Purchaser shall pay to the Company, for further distribution to and by the Company’s and it Subsidiaries’ payroll provider in accordance with the Company’s payroll processes and procedures, all Transaction Expenses that are compensatory payments to employees or other service providers of the Company or its Subsidiaries, and in each case, cause the Company or its Subsidiaries, as applicable, to withhold any Tax amounts required to be withheld under applicable Law with respect to such payments in accordance with Section 2.07;
(g) the Purchaser shall, pursuant to the Award Agreements (as defined in the Transaction Bonus Plan) entered into prior to Closing under the Transaction Bonus Plan, copies of which shall be made available to the Purchaser by the Seller Representative, deliver to the Company the Transaction Bonus Pool (for distribution by the Company to each Participant under the Transaction Bonus Plan who is owed a portion thereof in accordance with their respective Award Agreements) by wire transfer of immediately available funds to the account account(s) designated in writing by the Escrow Agent in writing not less than Seller Representative at least three (3) Business Days prior to the Closing Date;
(eh) the Purchaser shall deliver, or shall cause to be delivered, to deliver the Seller Representative the Representative Expenses Holdback Amount by wire transfer of immediately available funds to the account account(s) designated in writing by the Representative Seller Representative;
(i) after taking into account the payments and deliveries set forth in Sections 2.03(c) through (h), the Purchaser shall pay, or cause to be paid, to each Seller and Falcon, such Person’s applicable Series B Share or Closing Series A/C Share of the Estimated Closing Cash Proceeds as set forth on the Payment Schedule, in each case, by wire transfer of immediately available funds to the account(s) designated in writing not less than by the Seller Representative at least three (3) Business Days prior to the Closing Date;
(fj) the Purchaser Sellers shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as Purchaser evidence of the Closing transfer, conveyance, and assignment by wire transfer EBS to WSI of immediately available funds all of EBS’s right, title and interest in and to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing“▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇,” domain name; and
(hk) the Purchaser, each Trilogy Party and each Seller parties hereto shall make such other deliveries as are required from such party by Article II hereofIII.
Appears in 1 contract
Sources: Stock Purchase Agreement (Whole Earth Brands, Inc.)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto Parties shall consummate the following transactions (at the “Closing Transactions”) on the Closing DateClosing:
(a) each Seller shall (i) deliver to the Purchaser all of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the US Purchaser shall deliver, or cause to be delivered, the Company Closing Consideration to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Civil Law Notary’s Bank Account by wire transfer of immediately available funds to funds, which amounts must be received in the account(s) designated Civil Law Notary’s Bank Account by the Representative in writing not less than three (3) Business Days prior to 4:00 P.M. CET on the Closing Date; Date (provided, that Seller may direct Purchaser to deliver a portion of the Purchaser shall be entitled Closing Consideration to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithone or more of Purchaser’s designees by such time);
(cb) the Purchaser and US Purchaser shall repaydeliver, or cause to be repaid, on behalf of the Company and its Subsidiariesdelivered, the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, Escrow Fund to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by in the Escrow Agent in writing not less than three Agreement;
(3c) Business Days prior Purchaser and Seller shall instruct the Civil Law Notary to transfer the Shares to the Closing DatePurchaser by executing the Deed of Transfer;
(d) US Seller shall deliver, or cause to be delivered, the Units to US Purchaser;
(e) the Purchaser and US Purchaser shall deliver, or shall cause to be delivered, to ensure that the Representative Civil Law Notary transfers (i) the Representative Expenses Closing Shares Consideration deposited into the Civil Law Notary’s Bank Account by wire transfer of immediately available funds to the account bank account(s) designated by the Representative in writing not less than three by Seller and (3ii) Business Days prior the Units Consideration by wire transfer to the Closing Datebank account(s) designated in writing by US Seller;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II VII hereof; and
(g) the Civil Law Notary shall register the transfer of the Shares in the shareholders’ register of the Company and deliver the shareholders’ register to Purchaser.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller shall (i) deliver to the Purchaser all of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company deliver to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Purchase Price, by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithSeller;
(cb) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then-outstanding balance of all Indebtedness identified on the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in Indebtedness;
(c) the Payoff Letters, Purchaser shall deliver the funding Purchase Price Adjustment Escrow Amount to the Escrow Agent for such repayment deposit into an escrow account (the “Purchase Price Adjustment Escrow Account”) established pursuant to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds terms of the Equity FinancingEscrow Agreement;
(d) the Purchaser shall deliverpay, or shall cause on behalf of Seller, all Transaction Expenses to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Dateeach Person who is owed a portion thereof;
(e) Seller shall deliver to the Purchaser (i) stock certificates (or similar evidence) representing all of the Shares, which Shares shall deliverconstitute all of the issued and outstanding Equity Interests of the Company at Closing, free and clear of all Liens (other than those arising pursuant to applicable securities Laws), with blank transfer forms endorsed or shall cause to be deliveredstock powers executed in proper form for transfer, to the Representative the Representative Expenses by wire and with any required stock transfer stamps affixed thereto, and (ii) indirectly through its transfer of immediately available funds the Company at Closing, ownership of all issued and outstanding Equity Interests of each direct or indirect Subsidiary of the Company set forth on the Capitalization Schedule, free and clear of all Liens (other than those arising pursuant to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;applicable securities Laws); and
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II ARTICLE III hereof.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller the Purchaser shall (i) deliver to the Purchaser all of Seller the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Closing Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Payment by wire transfer of immediately available funds to the account(s) one or more accounts designated by the Representative in writing not less than three (3) Business Days prior Seller to the Closing Date; provided, that Purchaser in exchange for (i) the delivery by the Seller to the Purchaser shall be entitled to engage of stock certificate(s) evidencing the Shares and a paying agent to effect any payments duly executed stock power with respect to the Sellers under this AgreementShares, (ii) the execution of the Conveyance Agreements and (iii) the Company employee transfers contemplated by Section 1.07(a) and the Sellers shall take all actions reasonably required in connection therewithExhibit A;
(cb) (i) the Purchaser and the Seller shall enter into the Escrow Agreement with the Escrow Agent and (ii) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent deposit the Escrow Amount by wire transfer of immediately available funds to the account designated by into the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateAccount;
(ec) the Purchaser Seller shall deliver, or shall cause to be delivered, deliver Lien releases with respect to the Representative Shares and the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as assets of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof Company in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver a form reasonably satisfactory to the Purchaser evidence that all with respect to liens granted to secure the indebtedness listed on Schedule 1.04(c) and Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment on Equity Interests or assets of the Funded Indebtedness Acquired Companies or otherwise upon Transferred Assets as reasonably determined between the date hereof and the Closing to the Purchaser at the Closing; and;
(hd) the Purchaser, each Trilogy Party the Company and each the Seller shall make such other deliveries as are required from such party by Article II 2 hereof; and
(e) the Seller shall deliver to the Purchaser a properly completed IRS Form W-9 (provided that the Purchaser’s only remedy for the Seller’s failure to provide such form will be to withhold from the payments to be made pursuant to this Agreement, any required withholding Tax under Section 1445 of the Code, and the Seller’s failure to provide such form shall not be deemed to be a failure of the condition set forth in Section 2.01(b) to have been met).
Appears in 1 contract
Sources: Stock Purchase Agreement (TELUS International (Cda) Inc.)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller the Purchaser shall deposit $250,000.00 (ithe “Purchase Price Adjustment Escrow Amount”) deliver into an escrow account (including any interest or earnings thereon, the “Purchase Price Adjustment Escrow Account”) designated and established pursuant to the Purchaser all terms and conditions of an escrow agreement (the certificates “Escrow Agreement”)
(if anyb) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by among the Purchaser, the execution Sellers and delivery by such Person ▇▇▇▇▇ Fargo Bank, National Association, as escrow agent (the “Escrow Agent”), a copy of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrantwhich is attached hereto as Exhibit D;
(bc) the Purchaser shall deliverdeposit $1,250,000.00 (the “Indemnity Escrow Amount,” and together with the Purchase Price Adjustment Escrow Amount, the “Escrow Amount”) into an escrow account (including any interest or cause earnings thereon, the Company “Indemnity Escrow Account”) designated and established pursuant to deliver in the case terms and conditions of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled Escrow Agreement;
(d) in accordance with Section 1.01 (Purchase and Sale of Shares), the Total Equity Value Allocation Certificate Purchaser shall deliver to the Sellers the Estimated Purchase Price minus the Escrow Amount (as determined in accordance with Section 1.02(a)), by wire transfer of immediately available funds to the account(s) a bank account designated in writing by the Representative in writing not less than three (3) Sellers at least two Business Days prior to before the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith;
(ce) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesCompany, the Indebtedness listed on Schedule 1.05(c) (collectivelythe Indebtedness Schedule, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in Indebtedness; provided, that the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser Sellers shall deliverhave delivered, or the Sellers shall cause have caused the Company to be delivereddeliver, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days Purchaser prior to the Closing Date;Date appropriate payoff letters from the holders of Indebtedness listed on the Indebtedness Schedule and shall have made arrangements reasonably satisfactory to the Purchaser for such holders of Indebtedness listed on the Indebtedness Schedule to deliver all related Lien releases to the Purchaser at the Closing; and
(ef) simultaneously with the Closing, the Purchaser shall deliverpay, or shall cause to be deliveredpaid, to on behalf of the Representative Sellers or the Representative Company (as applicable), the Estimated Transaction Expenses by wire transfer of immediately available funds to the account designated as directed by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereofSellers.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this AgreementAgreement (including satisfaction of the Closing conditions set forth in Article IV herein), the parties Parties hereto shall consummate the following transactions (the “"Closing Transactions”") on the Closing Date:
(a) each Seller the Parties shall (i) deliver cause the Agreement of Merger, together with accompanying officers' certificates, to be executed and filed with the Purchaser all Secretary of State of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form State of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantCalifornia;
(b) in accordance with Section 2.3(a) of this Agreement, the Purchaser shall deliver, or cause deliver by wire transfer to the Company to deliver in Paying Agent immediately available funds representing the case of the Merger Closing Residual Cash RecipientsConsideration, to each Seller be administered and each Merger Cash Recipient delivered by the aggregate portion of Paying Agent to the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled Shareholders in accordance with the Total Equity Value Allocation Certificate by wire transfer terms of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, Section 2.3 herein and the Company and the Sellers shall take all actions reasonably required in connection therewithPaying Agent Agreement;
(c) in accordance with Sections 2.2(a)(iii)(B) and 2.12 of this Agreement, the Purchaser shall repaycause the Parent to issue the Holdback Shares in the name of the Shareholders (bearing such restrictive legends as may be required by Parent's legal counsel and transfer agent, consistent with the terms of this Agreement and the Transaction Documents) and shall hold such Holdback Shares pursuant to the terms of the Holdback Agreement;
(d) in accordance with Section 2.3(b) of this Agreement, subject to Purchaser’s and Parent’s receipt of confirmation of the Paying Agent’s receipt and acceptance of the duly executed Exchange Documents from the Shareholders, Parent shall authorize and instruct its transfer agent to act upon any instructions of the Paying Agent, given in accordance with the terms hereof and the Paying Agent Agreement, with respect to issuances of stock certificates representing the Closing Residual Stock Consideration (bearing such restrictive legends as may be required by Parent’s legal counsel and transfer agent, consistent with the terms of this Agreement and the Transaction Documents);
(e) the Company shall deliver to the Purchaser appropriate payoff letters from the holders of Indebtedness of the Company and its Subsidiary;
(f) simultaneously with the Closing, the Purchaser shall pay, or cause to be repaidpaid, on behalf of the Company and its SubsidiariesSubsidiary, out of the Cash Consideration, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness listed on Schedule 1.05(c) (collectivelyof the Company and its Subsidiary, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in accordance with a mutually agreeable Flow of Funds Memorandum duly executed by the Payoff Letters, Purchaser and the funding for such repayment to be obtained first from Company (the proceeds "Flow of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingFunds Memorandum");
(dg) simultaneously with the Closing, the Purchaser shall deliverpay, or shall cause to be deliveredpaid, on behalf of the Company and its shareholders, out of the Cash Consideration, the Transaction Expenses by wire transfer of immediately available funds to accounts as directed by the Company in accordance with the Flow of Funds Memorandum;
(h) simultaneously with the Closing, the Purchaser shall pay, or cause to be paid, on behalf of the Company and the Shareholders, out of the Cash Consideration, the SCP Funds by wire transfer of immediately available funds to the Escrow Agent SCP Account, which sum shall be held and disbursed pursuant to the Escrow terms of the SCP Assignment and Assumption Agreement to fully pay and discharge all obligations under the Special Compensation Plan;
(i) simultaneously with the Closing, the Purchaser shall pay, or cause to be paid, on behalf of the Shareholders, out of the Cash Consideration, the Expense Fund Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent Shareholder Representative in writing not less than three the Flow of Funds Memorandum (3) Business Days prior to the Closing Date"Expense Fund");
(ej) the Purchaser Parties shall deliver, or shall cause deliver executed counterparts of each Transaction Document to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Datewhich they are party;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(gk) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each casea certificate, other than Permitted Liensduly completed and executed pursuant to Sections 1.897-2(h) shall be released upon the payment and 1.1445-2(c) of the Funded Indebtedness or otherwise upon Treasury Regulations, certifying that the Closingshares of Preferred Stock and Common Stock are not United States real property interests within the meaning of Section 897(c) of the Code; and
(hl) the Purchaser, each Trilogy Party the Parent, the Merger Sub, the Company, the Shareholders and each Seller the Shareholder Representative shall make such other deliveries as are required from such party by Article II IV hereof.
Appears in 1 contract
Sources: Merger Agreement (Keyw Holding Corp)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall will consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller shall (i) deliver to the Purchaser all Company and Merger Sub will cause a duly executed copy of the certificates (if any) evidencing Certificate of Merger to be filed with the Purchased Securities owned by such Seller duly endorsed for transfer Secretary of State of the State of Delaware and make all other filings or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested recordings required by the Purchaser, DGCL in connection with the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantMerger;
(b) the Purchaser shall deliver, Parent will deliver or cause to be delivered to the Company Paying Agent an amount equal to deliver in the case of aggregate Estimated Closing Proceeds payable to the Merger Cash Recipients, Stockholders (for distribution by the Paying Agent to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled Stockholder in accordance with the Total Equity Value Allocation Certificate Article 2), by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithfunds;
(c) Parent will deliver or cause to be delivered to the Purchaser shall Surviving Corporation an amount equal to the aggregate Estimated Closing Proceeds payable to the vested In-The-Money Optionholders (for distribution by the Surviving Corporation to each vested In-The-Money Optionholder in accordance with Article 2), by wire transfer of immediately available funds;
(d) Parent will repay, or cause to be repaid, on behalf of the Company and its SubsidiariesCompany, (i) all amounts necessary to discharge fully the then‑outstanding balance of all Indebtedness listed on set forth in Section 3.2(d) of the Disclosure Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(de) Parent will deliver the Purchaser shall deliver, or shall cause to be delivered, Escrow Amount to the Escrow Agent for deposit into an escrow account established pursuant to the terms of the Escrow Amount Agreement;
(f) Parent will deliver the Representative Expense Fund by wire transfer of immediately available funds to the account account(s) designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payrollSecurityholder Representative;
(g) the Company shall deliver to the Purchaser evidence that all Liens Parent will pay, on behalf of the Company’s assets securing Funded Indebtedness (in , all Unpaid Transaction Expenses to each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the ClosingPerson who is owed a portion thereof; and
(h) Parent, Merger Sub and the Purchaser, each Trilogy Party and each Seller shall Company (on behalf of itself and/or the Indemnifying Securityholders) will make such other deliveries as are required from such party by Article II hereof7.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller the Company and the Merger Sub shall (i) deliver cause the Certificate of Merger to be executed and filed with the Purchaser all Secretary of State of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form State of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantDelaware;
(b) the Purchaser shall deliverdeliver to the Paying Agent the Closing Residual Cash Consideration (less the Special Vesting Class B Escrow Amount), or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled as determined in accordance with the Total Equity Value Allocation Certificate Sections 1.02 and 1.04, by wire transfer of immediately available funds to the account(s) one or more accounts designated by the Representative in writing not less than three (3) Business Days prior Paying Agent to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithPurchaser;
(c) the Purchaser shall deliver to the Representative (on behalf of each Unitholder) the Holdback Amount, by wire transfer of immediately available funds to one or more accounts designated by the Representative to the Purchaser;
(d) the Purchaser shall deposit (i) $5,000,000 (the “Adjustment Escrow Amount”) into an escrow account (the “Adjustment Escrow Account”) established pursuant to the terms and conditions of an escrow agreement, substantially in the form of Exhibit B attached hereto (the “ Escrow Agreement”), by and among the Purchaser, the Representative and W▇▇▇▇ Fargo Bank, National Association, as escrow agent (the “Escrow Agent”), and (ii) $25,000,000 (the “Indemnity Escrow Amount” and, together with the Adjustment Escrow Amount, the “Escrow Amount”) into an escrow account (the “Indemnity Escrow Account”) established pursuant to the terms and conditions of the Escrow Agreement;
(e) the Purchaser shall deposit the Special Vesting Class B Escrow Amount into an escrow account established pursuant to the terms and conditions of the Escrow Agreement;
(f) the Company shall deliver to the Purchaser payoff letters, which shall be reasonably satisfactory to the Purchaser, from each holder of Indebtedness listed on the Indebtedness Payoff Schedule, and shall make arrangements reasonably satisfactory to the Purchaser for each such holder of Indebtedness to deliver all related Lien releases to the Purchaser as soon as practicable after the Closing;
(g) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts required to be paid under the payoff letters delivered pursuant to Section 2.02(f) in order to fully discharge the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant owed to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff LettersPersons thereunder, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated in such payoff letters;
(h) the Purchaser, the Company and the Representative (on behalf of the Unitholders) shall make such other deliveries as are required by Article 3 hereof;
(i) the payees thereof in writing not less than three Purchaser shall pay, on behalf of the Unitholders and the Company and its Subsidiaries (3) Business Days prior as applicable), the Transaction Expenses, by wire transfer of immediately available funds to the Closing Date; provided, that accounts designated on the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;Schedule; and
(gj) either (i) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each casea certificate, other than Permitted Liensduly completed and executed pursuant to Section 1.1445-11T(d)(2) shall be released upon the payment of the Funded Indebtedness Treasury Regulations, certifying that fifty percent or otherwise upon more of the Closing; and
value of the gross assets of the Company does not consist of United States real property interests, or that ninety percent or more of the value of the gross assets of the Company does not consist of United States real property interests plus cash or cash equivalents, or (hii) each Unitholder shall deliver to Purchaser a non-foreign affidavit dated as of the Purchaser, each Trilogy Party Closing Date in form and each Seller shall make substance as required by the Treasury Regulations issued pursuant to Code Section 1445 stating that such other deliveries Unitholder is not a “foreign person” as are required from such party by Article II hereofdefined in Code Section 1445.
Appears in 1 contract
Sources: Merger Agreement (Campbell Soup Co)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller the Purchaser shall (i) deliver to the Purchaser all Paying Agent (for the benefit of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the PurchaserStockholders), the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Closing Stock Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Consideration by wire transfer of immediately available funds to the account(s) account or accounts designated by the Representative in writing not less than three Paying Agent;
(3b) Business Days prior following receipt by the Paying Agent of such Closing Stock Merger Consideration pursuant to the Closing Date; providedSection 3.02(a), that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers Merger Sub shall take all actions reasonably required in connection therewithcause the Certificate of Merger to be executed, acknowledged and filed with the Secretary of State of the State of Delaware;
(c) upon the receipt by the Paying Agent of any Letter of Transmittal, duly completed and validly executed in accordance with the instructions thereto, the Paying Agent shall pay to the Stockholder who submitted such Letter of Transmittal an amount equal to the portion of the Closing Stock Merger Consideration to which such Stockholder is entitled pursuant to Section 1.02;
(d) the Purchaser, on behalf of the Surviving Corporation, shall deliver to each Optionholder such holder’s portion of the Closing Option Merger Consideration (as determined in accordance with Section 1.05(a)) in accordance with Section 1.05(a);
(e) the Purchaser shall deposit $5,000,000 (the “Working Capital Escrow Amount”) into an escrow account (the “Escrow Account”) established pursuant to the terms and conditions of an escrow agreement (the “Escrow Agreement”) by and among the Purchaser, the Stockholder Representative and ▇▇▇▇▇ Fargo, N.A., as escrow agent (the “Escrow Agent”), substantially in the form of Exhibit E attached hereto;
(f) the Purchaser shall deposit $35,000,000 (the “Indemnity Escrow Amount”) into the Escrow Account established pursuant to the terms and conditions of the Escrow Agreement;
(g) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness under the agreements set forth on the Indebtedness listed on Schedule 1.05(c) (collectivelySchedule, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(dh) in accordance with Section 1.08, the Purchaser shall deliver, or shall cause to be delivered, deliver the Representative Holdback Amount to the Escrow Agent the Escrow Amount Stockholder Representative by wire transfer of immediately available funds to funds;
(i) in accordance with Section 1.09, the account designated by the Escrow Agent in writing not less than three (3) Business Days prior Purchaser shall deliver an amount equal to the Closing DateBonus Payments as set forth on the Closing Bonus Payment Statement to the Surviving Corporation;
(ej) the Purchaser, the Merger Sub, the Company and the Stockholder Representative shall make such other deliveries as are required by Article IV hereof; and
(k) simultaneously with the Closing, the Purchaser shall deliverpay, or shall cause to be deliveredpaid, to on behalf of the Representative Equityholders and the Representative Company (as applicable), the Transaction Expenses by wire transfer of immediately available funds to the account designated as directed by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereofStockholder Representative.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller the Sellers Representatives shall (i) deliver to the Purchaser (i) completed and duly executed Letters of Transmittal from all Sellers, together with all of the stock certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transferShares, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) all books and records and other property of the Company or any of its Subsidiaries in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate Seller’s possession or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against under any claim that may be made against it with respect to such lost certificate or WarrantSeller’s control;
(b) the Purchaser shall deliver, or cause (i) deliver to the Company to deliver in the case Sellers Representatives (on behalf of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled Sellers other than Proterra in accordance with their respective Allocation Percentages) an amount in cash equal to the Total Equity Value Allocation Certificate Closing Payment, less the portion thereof to be delivered to Proterra pursuant to the immediately following clause (ii), by wire transfer of immediately available funds to the account(s) designated by the Representative Sellers Representatives (which account(s) shall be designated by the Sellers Representatives to the Purchaser in writing not less than at least three (3) Business Days prior to before the Closing Date; provided), that (ii) deliver to Proterra an amount in cash equal to Proterra’s Allocation Percentage of the Closing Payment, by wire transfer of immediately available funds to the account designated by Proterra (which account shall be designated by Proterra to the Purchaser shall in writing at least three (3) Business Days before the Closing Date), and (iii) issue or transfer, or cause to be entitled to engage a paying agent to effect any payments issued or transferred, to the Sellers under this Agreement(in accordance with their respective Allocation Percentages) the number of Purchaser Shares payable as the Stock Consideration pursuant to the terms hereof, and which may be represented by book-entry interests or one or more certificates issued to each Seller at the Company and the Sellers shall take all actions reasonably required in connection therewithPurchaser’s election;
(c) the Company shall deliver to the Purchaser appropriate evidence of releases of any Liens (other than any Permitted Liens) related to the assets and properties of the Company and its Subsidiaries and payoff letters with respect to any Indebtedness set forth on the Indebtedness Payoff Schedule outstanding as of the Closing (in each case in a form reasonably satisfactory to the Purchaser);
(d) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of the Indebtedness listed (as set forth on the Indebtedness Payoff Schedule 1.05(cdelivered by the Sellers Representatives or the Company to Purchaser at least three (3) (collectively, the “Funded Indebtedness”), pursuant Business Days prior to the Payoff Letters Closing Date) by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateIndebtedness;
(e) the Purchaser shall deliverrepay, or shall cause to be deliveredrepaid, on behalf of the Sellers, the Company and its Subsidiaries, all amounts necessary to discharge fully the Representative the Representative Expenses then outstanding balance of all Seller Transaction Expenses, by wire transfer of immediately available funds funds, to the account account(s) designated by the Representative each Person to whom such Seller Transaction Expenses are to be paid and delivered in writing not less than by the Sellers Representatives or the Company to Purchaser at least three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to deliver the applicable payees Indemnity Escrow Amount and the Transaction Expenses that remain unpaid as of the Closing Working Capital Escrow Amount by wire transfer of immediately available funds to the accounts Escrow Agent;
(g) Purchaser shall deposit, or cause to be deposited, the Sellers Representatives Admin Expense Fund by wire transfer of immediately available funds to an account designated in writing by the payees thereof in writing not less than Sellers Representatives at least three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(gh) the Company each Seller shall deliver to Purchaser at least three (3) Business Days prior to the Closing Date such information concerning the Seller as Purchaser or its registrar and transfer agent may reasonably request at least five (5) Business Days prior to the Closing Date in order to issue the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the ClosingShares to such Seller; and
(hi) the PurchaserPurchaser and the Sellers Representatives or the Company, each Trilogy Party and each Seller as applicable, shall make such other deliveries as are required from such party by Article II hereof.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing DateDate or such later date as set forth in Exhibit B:
(a) each Seller the Company and Merger Sub shall (i) deliver to the Purchaser all cause a duly executed copy of the certificates (if any) evidencing Certificate of Merger to be filed with the Purchased Securities owned by such Seller duly endorsed for transfer Secretary of State of the State of Delaware and make all other filings or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested recordings required by the Purchaser, DGCL in connection with the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantMerger;
(b) the Purchaser Parent shall deliver, deliver or cause to be delivered to the Exchange Agent (i) an amount of cash equal to the Closing Cash Consideration, if any, and (ii) the Closing Parent Stock Consideration, for distribution by the Exchange Agent to the holders of shares of Company to deliver in the case Stock of the Merger Cash Recipients, to each Seller amounts issuable and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled payable in accordance with clause (i) of Section 2.5(a);
(c) Parent shall deliver the Total Equity Value Allocation Certificate Representative Expense Amount by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithStockholder Representative;
(cd) the Purchaser Parent shall repay, or cause to be repaid, on behalf of the Company, all amounts necessary to discharge fully the then-outstanding balance of all Indebtedness set forth on Section 2.7(d) of the Company and its Subsidiaries, the Indebtedness listed on Disclosure Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateIndebtedness;
(e) Parent shall pay, on behalf of the Purchaser shall deliverCompany, or shall cause all Transaction Expenses to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Dateeach Person who is owed a portion thereof;
(f) Parent shall pay, on behalf of the Purchaser shall deliverCompany, or shall cause to be delivered, to all Balance Sheet Liabilities of the applicable payees the Transaction Expenses that remain unpaid Company as of the Closing by wire transfer of immediately available funds Date to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Dateeach Person who is owed a portion thereof; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;and
(g) Parent, Merger Sub and the Company shall deliver to (on behalf of itself and the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted LiensIndemnifying Securityholders) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereofVI.
Appears in 1 contract
Sources: Agreement and Plan of Merger (VectivBio Holding AG)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller The Company and the Merger Sub shall (i) deliver cause the Certificate of Merger to be executed and filed with the Purchaser all Secretary of State of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form State of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;Delaware.
(b) Subject to Section 1.02(b), the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipientsbe delivered, to each Seller and each Merger Cash Recipient the Paying Agent the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Closing Stock Payments, by wire transfer of immediately available funds to the account(s) account or accounts designated by the Representative in writing not less than three Paying Agent.
(3c) Subject to Section 1.02(b), the Purchaser shall, or shall cause the Merger Sub to, deliver to the Company the aggregate Closing Option Payments payable to the Optionholders by wire transfer of immediately available funds to an account designated by the Company to Purchaser at least two (2) Business Days prior to the Closing Date; provided. On the Closing Date or as promptly as practicable following the Closing Date and, that in any event, no later than the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and next scheduled payroll of the Company and its Subsidiaries, the Sellers shall take all actions reasonably required in connection therewith;Company will pay to the Optionholders their respective Closing Option Payments.
(cd) The Purchaser shall deposit, or cause to be deposited, $10,000,000 (such deposit, together with all interest and dividends accrued thereon, if any, the “Escrow Amount”) into an escrow account (the “Escrow Account”) established pursuant to the terms and conditions of an escrow agreement (the “Escrow Agreement”) by and among the Purchaser, the Representative and Wilmington Trust, N.A., as escrow agent (the “Escrow Agent”), in substantially the form of Exhibit C.
(e) The Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness set forth on the Indebtedness listed on Schedule 1.05(c) (collectivelywhich shall exclude, for avoidance of doubt, the “Funded Indebtedness”), pursuant to the Payoff Letters Notes) by wire transfer of immediately available funds to the account(s) designated by the holders of such Indebtedness as set forth in lien release letters with respect to such Indebtedness delivered to the Purchaser on or prior to the Closing Indebtedness in the Payoff LettersDate.
(f) The Purchaser shall deposit, the funding for such repayment or cause to be obtained first from deposited, with the proceeds of Debt Financing and thentrustee under the Indenture, as necessary, from the proceeds on behalf of the Equity Financing;Company, funds sufficient to effectuate the satisfaction and discharge in full of the Company’s obligations under the Indenture contemplated in Section 6.07.
(dg) the The Purchaser shall deliver, or shall cause to be delivered, the Representative Holdback Amount to the Escrow Agent the Escrow Amount Representative by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;Representative.
(eh) the The Purchaser shall deliverpay, or shall cause to be deliveredpaid, to on behalf of the Representative Stockholders, the Representative Optionholders and the Company (as applicable), the Transaction Expenses by wire transfer of immediately available funds to the account designated as directed by the Representative in writing not less than three (3) Business Days prior to the Closing Date;Company.
(fi) The Purchaser, the Purchaser shall deliverMerger Sub, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) and the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller Representative shall make such other deliveries as are required by ARTICLE III.
(j) In accordance with the Paying Agent Agreement, the Paying Agent will act as the Representative’s agent in delivering to each Stockholder its respective Closing Stock Payment pursuant to Section 1.02, as well as any amounts owed pursuant to Section 1.07. At the Effective Time, the Paying Agent shall pay each Stockholder who has surrendered his, her or its shares of Common Stock pursuant to a duly executed and completed letter of transmittal, in substantially the form of Exhibit A (each, a “Letter of Transmittal”), the amount of Closing Stock Payment to which each such Stockholder is entitled under Section 1.02, and thereafter, as and when any Additional Merger Consideration is payable in accordance with the terms of this Agreement. The Stock Consideration payable to a Stockholder will be made via wire transfer of immediately available funds to an account designated in writing by such Stockholder in the Letter of Transmittal, to the extent permitted by the Letter of Transmittal. Any such surrendered certificate shall forthwith be canceled. Until so surrendered and exchanged, each such share of Common Stock, and each certificate representing such shares, shall from and after the Effective Time represent solely the right to receive the portion of the Merger Consideration into which it was converted pursuant to Section 1.02. Each such party Stockholder that makes the deliveries to the Paying Agent required by Article II hereofthis Agreement and the Paying Agent Agreement two (2) Business Days prior to the Effective Time will be paid his, her or its Closing Stock Payment on the same Business Day as the Effective Time, or as soon as possible thereafter. Each such Stockholder that makes the deliveries to the Paying Agent required by this Agreement and the Paying Agent Agreement after the Effective Time will be paid his, her or its Closing Stock Payment as soon as possible thereafter (but in any event no later than two (2) Business Days after such delivery thereof is made). Subject to subsection (l) below, none of the Surviving Corporation, the Representative, or, assuming the payment in full to the Paying Agent of the amounts pursuant to Section 2.02(b), the Purchaser will be liable to any Stockholder in respect of amounts payable by the Paying Agent pursuant to this Section 2.02(j).
(k) Notwithstanding the foregoing, if any certificate representing any such share of Common Stock shall have been lost, stolen or destroyed, then, upon the making of an affidavit of such fact by the Person claiming such certificate to be lost, stolen or destroyed, the Purchaser shall issue, in exchange for such lost, stolen or destroyed certificate, the Merger Consideration to be paid in respect of the shares of Common Stock represented by such certificate, as contemplated by this ARTICLE I.
(l) At any time that is more than one (1) year after the Effective Time, the Purchaser may cause the Paying Agent to pay over to the Surviving Corporation any portion of the Stock Consideration (including any earnings thereon) that had been delivered to the Paying Agent and that has not been disbursed to Stockholders as of such first anniversary (other than any amounts then subject to dispute). After the Paying Agent makes such payments to the Surviving Corporation, all former Stockholders will be entitled to look only to the Surviving Corporation (subject to any applicable abandoned property, escheat and other similar Laws) as general creditors thereof with respect to the cash payable upon surrender of their shares of Common Stock pursuant to this Agreement, and the Paying Agent will have no further obligation under this Section 2.01 in its capacity as such. None of the Surviving Corporation, Purchaser, Merger Sub, the Representative or the Paying Agent will be liable to any Person in respect of amounts paid to a public official to the extent required under any applicable abandoned property, escheat or similar Law.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (at the “Closing Transactions”) on the Closing DateClosing:
(a) each Seller the Purchaser shall (i) deliver to the Purchaser all of Seller the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith;
(c) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount Preliminary Purchase Price by wire transfer of immediately available funds to the account designated set forth on Exhibit A;
(b) the Purchaser shall deposit an amount equal to $1,500,000 (the “Escrow Amount”) into an escrow account (the “Escrow Account”) established pursuant to the terms and conditions of the certain escrow agreement, a copy of which is attached hereto Exhibit B (the “Escrow Agreement”), dated as of even date herewith, by and among the Purchaser, the Seller and Citibank, N.A., as escrow agent (the “Escrow Agent”);
(c) the Seller shall deliver to the Purchaser a written instrument of transfer duly executed by the Seller;
(d) the Seller or the Company, as applicable, shall deliver to the Purchaser each of the following:
(i) a certified copy of the Organizational Documents of the Company;
(ii) copies of the resolutions duly adopted by the Company’s board of directors and the Seller’s general partner authorizing the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby;
(iii) the Escrow Agreement, duly executed by the Escrow Agent in writing not less than three and the Seller;
(3iv) Business Days prior evidence that the Company’s engagement letter with Evercore Inc. has been assigned to the Seller effective as of 11:59 p.m. prevailing Eastern Time on the Closing Date;
(v) evidence that the contracts set forth on Schedule 1.04(d)(v) have been assigned to the Company or a Subsidiary of the Company; and
(vi) duly executed resignation letters, dated as of the date of this Agreement and effective as of the Closing, from each member of the board of directors, managers or equivalent governing body of each of the Persons set forth on Schedule 1.04(d)(vi).
(e) the Purchaser shall deliver, or shall cause to be delivered, deliver to the Representative Seller each of the Representative Expenses by wire transfer following:
(i) a copy of immediately available funds to the account designated resolutions duly adopted by the Representative in writing not less than three Purchaser’s board of directors (3or its equivalent governing body) Business Days prior to authorizing the Closing Date;execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby; and
(ii) the Escrow Agreement, duly executed by the Escrow Agent and the Purchaser; and
(f) the Purchaser shall deliverpay, on behalf of the Seller or shall cause the Company (as applicable), the Estimated Transaction Expenses (including, for the avoidance of doubt, any bonuses or similar payments to be delivered, employees of the Company or any of its Subsidiaries that constitute Transaction Expenses) to the applicable payees the Transaction Expenses that remain unpaid as of the Closing set forth on Exhibit A, by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior set forth next to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) name of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens applicable payee set forth on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereof.Exhibit A.
Appears in 1 contract
Sources: Share Purchase Agreement (Intercontinental Hotels Group PLC /New/)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each the Seller shall (i) deliver to the Purchaser all evidence of assignment of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable Interests to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrantform attached hereto as Exhibit A;
(b) the Purchaser shall deliverpay, or cause the Company to deliver in the case of the Merger Cash Recipientsbe paid, to each the Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with Purchase Price, less the Total Equity Value Allocation Certificate Adjustment Escrow Amount, by wire transfer of immediately available funds to the account(s) designated by the Representative Seller (which account(s) and amounts shall be designated by the Seller to the Purchaser in writing not less than at least three (3) Business Days prior to before the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith);
(c) the Company shall deliver to the Purchaser appropriate payoff letters from the holders of Indebtedness set forth on Schedule 1.4(c) in form and substance reasonably acceptable to the Purchaser (the “Payoff Letters”);
(d) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesCompany, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness listed set forth on Schedule 1.05(c) (collectively, the “Funded Indebtedness”1.4(c), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(de) the Purchaser shall deliverdeposit, or shall cause to be delivereddeposited, to the Escrow Agent the Adjustment Escrow Amount out of the Estimated Purchase Price by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing DateAgent;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens invoices with respect to the Estimated Transaction Expenses from the Persons set forth on Schedule 1.4(f) in form and substance reasonably acceptable to the Purchaser;
(g) the Purchaser shall pay, or cause to be paid, on behalf of the Company’s assets securing Funded Indebtedness , all amounts necessary to discharge fully the then outstanding balance of all Estimated Transaction Expenses, by wire transfer of immediately available funds, to the account(s) designated by each Person to whom such Estimated Transaction Expenses are to be paid; provided that any amounts treated as wages for income Tax purposes (in each caseincluding, other than Permitted Liensfor the avoidance of doubt, the Option Proceeds) shall be released upon paid to the payment Company or its applicable Subsidiary, which shall pay such amounts, less any applicable withholding Taxes as set forth on the Payment Spreadsheet, to such recipients through its payroll system promptly following the Closing Date but in any event not later than the next normal payroll date of the Funded Indebtedness or otherwise upon Company that follows the ClosingClosing Date; and
(h) the Purchaser, each Trilogy Party Purchaser and each the Seller shall make such other deliveries as are required from such party by Article II hereof2.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto Parties shall consummate the following transactions (at the “Closing Transactions”) on the Closing Date:
Closing: (a) each Seller the Buyer shall pay, or cause to be paid: 18 [[6907028]] (i) deliver to the Purchaser all Paying Agent, the sum of (A) the certificates Closing Payment plus (if anyB) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transferBuyer Note Amount, in blank or to the relevant redeeming entity or the Purchasereach case, all as reasonably acceptable to the Purchaser and (ii) set forth in the case of any Seller who is a WarrantholderEstimated Closing Statement, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) designated in writing by the Representative in writing not less than Paying Agent to the Buyer at least three (3) Business Days prior to the Closing Date; providedClosing, that which the Purchaser shall be Paying Agent will disburse to the Seller Parties entitled to engage a paying agent to effect any payments payment in accordance with the Paying Agent Agreement, this Agreement and the Payment Schedule; (ii) to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith;
(c) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesUnitholder Representative, the Indebtedness listed on Schedule 1.05(c) (collectivelyRepresentative Amount, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated in writing by the holders of such Closing Indebtedness in Unitholder Representative to the Payoff Letters, Buyer at least three Business Days prior to the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
Closing; (diii) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent (A) the Adjustment Escrow Amount Amount, by wire transfer of immediately available funds to the account designated by the Adjustment Escrow Agent in writing not less than three Account, and (3) Business Days prior to the Closing Date;
(eB) the Purchaser shall deliverIndemnification Escrow Amount, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated Indemnification Escrow Account; (iv) to the extent not otherwise included in this Section 2.02(a), to the applicable Persons, on behalf of the Company, the Seller Expenses set forth in final invoices (or other reasonable evidence of amounts due) by wire transfer of immediately available funds as directed by the Representative in writing not less than Company at least three (3) Business Days prior to the Closing; provided, that any amounts of any such Seller Expenses treated as wages for income Tax purposes shall be paid to the Company or its applicable Subsidiary, which shall pay such amounts, less any applicable withholding Taxes, to each Person to whom such Seller Expenses are to be paid through its payroll system on or reasonably promptly after the Closing Date;
; (fv) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees Paying Agent all fees and expenses due pursuant to the Transaction Expenses that remain unpaid Paying Agent Agreement, as of set forth in the Closing Paying Agent Agreement; (vi) to the Escrow Agent all fees and expenses due pursuant to the Escrow Agreement, as set forth in the Escrow Agreement; and (vii) to the Unitholder Representative, the Engagement Fee, by wire transfer of immediately available funds to the accounts account(s) designated in writing by the payees thereof Unitholder Representative to the Buyer prior to the Closing; (viii) at the election of the Company or to the extent reasonably determined by the Company to be necessary to satisfy the condition set forth in writing not less than Section 9.02(c), to the applicable Persons, on behalf of the Company, Transaction Expenses (including the Potash Bonus Payment, if any, to ▇▇▇▇▇▇ ▇▇▇▇▇▇) set forth in final invoices (or other reasonable evidence of amounts due) by wire transfer of immediately available funds as directed by the Company at least three (3) Business Days prior to the Closing; provided, that any amounts of any such Transaction Expenses treated as wages for income Tax purposes shall be paid to the Company or its applicable Subsidiary, which shall pay such amounts, less any applicable withholding Taxes, to each Person to whom such Transaction Expenses are to be paid through its payroll system on or reasonably promptly after the Closing Date; provided, further, that for all purposes, such payments by 19 [[6907028]] the Transaction Expenses described Buyer shall be treated as a contribution of such amount to the Company and the Company shall issue to the Buyer a number of additional Equity Investor Units equal to the aggregate amount funded by the Buyer pursuant to this Section 2.02(a)(viii); (b) the Buyer shall deliver, or cause to be delivered, to the Company and the Unitholder Representative (and in clauses the case of the Aquiline Letter Agreement or the Potash Letter Agreement, to the other applicable parties thereto): (i) a counterpart to the Escrow Agreement, duly executed by the Buyer; (ii) a counterpart to the Paying Agent Agreement, duly executed by the Buyer; (iii) a counterpart to the A&R Shared Blocker LPA, duly executed by the Buyer and the Shared Blocker GP; (iv) counterparts to the A&R Company LPA, duly executed by the Buyer and the WM Phoenix GP; (v) counterparts to the A&R WM Phoenix GP LLCA, duly executed by the Buyer and the WM Phoenix GP; (vi) a counterpart to the A&R Co-Invest Blocker LPA, duly executed by the ▇▇ ▇▇▇▇▇▇▇ GP; (vii) a counterpart to the Aquiline Letter Agreement, duly executed by the Company, the WM Phoenix GP, the Buyer, ▇▇ ▇▇▇▇ and the Guarantor; (viii) a counterpart to the Potash Letter Agreement, duly executed by the Company, the WM Phoenix GP, the Buyer, ▇▇ ▇▇▇▇ and the Guarantor; (ix) if required pursuant to Section 1.01(a), a counterpart to the Buyer Note, duly executed by the Buyer (or each Person that is a Lender); (x) a certificate of an authorized officer of the definition thereof shall be paid to Buyer in his or her capacity as such, dated as of the Company for processing through Closing Date, stating that the conditions specified in Sections 9.03(a) and 9.03(b) have been satisfied; and (xi) certified copies of resolutions or a written consent duly adopted by the Buyer’s board of directors (or its payroll;
equivalent governing body) authorizing the execution, delivery and performance of this Agreement; (gc) the Company shall deliver deliver, or cause to be delivered, to the Purchaser evidence that all Liens on Buyer: (i) documentation evidencing the consummation of the Pre-Closing Reorganization; 20 [[6907028]] (ii) counterparts to the A&R Company LPA, duly executed by the Company and the General Partner; (iii) if required pursuant to Section 1.01(a), a counterpart to the Buyer Note, duly executed by the Company’s assets securing Funded Indebtedness ; (iv) counterparts to the Aquiline Letter Agreement, duly executed by the Initial AQ Unitholder and the AFSF V Blocker; (v) counterparts to the Potash Letter Agreement, duly executed by Potash Operating LP, Distinguished Programs Ownership LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇; (vi) a certificate of an authorized officer of the Company in his or her capacity as such, dated as of the Closing Date, stating that the conditions specified in Sections 9.02(a)(i), 9.02(a)(ii), 9.02(a)(iii) and 9.02(b), as they relate to the Company, and the condition specified in Section 9.02(c), in each case, other than Permitted Lienshave been satisfied; (vii) shall be released upon the payment a copy of the Funded Indebtedness resolutions or otherwise upon written consent duly adopted by the ClosingGeneral Partner’s governing body authorizing the execution, delivery and performance of this Agreement; (viii) a counterpart to the Escrow Agreement, duly executed by the Company; and (ix) a counterpart to the Paying Agent Agreement, duly executed by the Company; (d) the Co-Invest Blocker Seller shall deliver, or cause to be delivered, to the Buyer: (i) duly executed instruments of assignment evidencing the transfer of the Blocker Equity to the Buyer; (ii) counterparts to the A&R Co-Invest Blocker LPA, duly executed by the Co-Invest Blocker Seller, the Co-Invest Blocker and the Co-Invest Blocker GP; and (iii) a certificate of the Co-Invest Blocker GP in its capacity as such, dated as of the Closing Date, stating that the conditions specified in Sections 9.02(a) and 9.02(b), as they relate to the Co-Invest Blocker, have been satisfied; (e) the AFSF V Blocker Seller shall deliver, or cause to be delivered, to the Buyer: (i) counterparts to the A&R Shared Blocker LPA, duly executed by the AFSF V Blocker Seller, the AFSF V Blocker and the AFSF V Blocker GP; (ii) a counterpart to the Aquiline Letter Agreement, duly executed by the AFSF V Blocker; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereof.
Appears in 1 contract
Sources: Unit Purchase Agreement (White Mountains Insurance Group LTD)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto Purchaser and the Sellers shall consummate the following transactions (the “"Closing Transactions”") on the Closing Date:
(a) each Seller the Purchaser shall (i) deliver to the Purchaser all Paying Agent, on behalf of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transferSellers, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) designated in writing by the Representative in writing not less than three (3) Business Days Paying Agent prior to the Closing Date; providedan amount (the "Closing Payment") equal to (A) the applicable amount contemplated by clauses (i), that (ii) or (iii) below minus (B) the Purchaser shall be entitled to engage a paying agent to effect any payments Escrow Amount (less an amount equal to the Sellers under this AgreementAdjustment Amount) minus (C) the Transaction Expenses minus (D) the Representative Holdback Amount:
(i) if the Aggregate Consented Client Closing Revenue Run Rate is equal to or greater than 85% of the Aggregate Base Revenue Run Rate, an amount (not to exceed 100% of the Closing Cash Consideration) equal to the product of (A) 100% of the Closing Cash Consideration and (B) a quotient, the numerator of which is the Aggregate Consented Client Closing Revenue Run Rate and the Company and denominator of which is the Sellers shall take all actions reasonably required in connection therewithAggregate Base Revenue Run Rate;
(cii) if a Sellers Election has been invoked, an amount equal to the Purchaser shall repay, or cause to be repaid, on behalf product of (A) 100% of the Company Closing Cash Consideration and its Subsidiaries(B) a quotient, the Indebtedness listed on Schedule 1.05(cnumerator of which is the Aggregate Consented Client Closing Revenue Run Rate and the denominator of which is the Aggregate Base Revenue Run Rate; or
(iii) (collectivelyif a Purchaser Election has been invoked, the “Funded Indebtedness”), pursuant an amount equal to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds 85% of the Equity FinancingClosing Cash Consideration;
(db) the Purchaser Paying Agent shall deliver, or shall cause to be delivered, pay the Closing Payment to the Escrow Agent the Escrow Amount Sellers, by wire transfer of immediately available funds to the account designated by each Seller in accordance with the terms of the Paying Agent Agreement and the Allocation Methodology Schedule;
(c) the Purchaser shall deposit the Escrow Agent in writing not Amount (less than three (3) Business Days prior an amount equal to the Closing DateAdjustment Amount) into an escrow account (the "Escrow Account") established pursuant to the terms and conditions of an escrow agreement (the "Escrow Agreement") by and among the Purchaser, the Representative, and Citibank, N.A., as escrow agent (the "Escrow Agent"), substantially in the form of Exhibit B;
(d) concurrent with the Closing, (i) the applicable Management Sellers shall repay in full the Management Notes; and (ii) the Company shall repay all Indebtedness under the Term Loan Agreement, dated September 4, 2014, by and between the Company and FirstMerit Bank, N.A.;
(e) the Purchaser shall deliverpay, or shall cause to be deliveredpaid, to on behalf of the Representative Sellers and the Representative Company (as applicable), on or before the Closing, the Transaction Expenses by wire transfer of immediately available funds to the account designated as directed by the Representative in writing not less than three (3) Business Days Company prior to the Closing DateClosing;
(f) the Purchaser shall deliverpay, or shall cause to be deliveredpaid, an amount equal to $1,000,000 (the "Representative Holdback Amount") to the applicable payees Representative at the Transaction Expenses that remain unpaid as Closing, on behalf of the Closing Sellers, by wire transfer of immediately available funds to the accounts a segregated account designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payrollRepresentative;
(g) the Company each Seller shall sell, assign, transfer and deliver to the Purchaser evidence that all Liens Purchaser, as applicable, (i) an assignment separate from certificate with respect to the Units (other than the Retained Units) set forth next to such Seller's name on the Company’s assets securing Funded Indebtedness Seller Schedule and (in each case, other than Permitted Liensii) shall be released upon stock certificates and stock powers with respect to the payment of the Funded Indebtedness or otherwise upon the ClosingBlocker Shares; and
(h) the Purchaser, each Trilogy Party the Company and each Seller the Sellers shall make such other deliveries as are required from such party by Article II hereofIII.
Appears in 1 contract
Sources: Securities Purchase Agreement (NorthStar Asset Management Group Inc.)
The Closing Transactions. Subject to At the terms and conditions set forth in this AgreementClosing, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Datetransactions:
(a) each the Seller shall (i) deliver to the Purchaser all of the certificates (certificates, if any) , evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or Shares, accompanied by duly executed security transfer stock powers or other form applicable forms of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, deliver or cause to be delivered to the Company Seller an amount equal to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Closing Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Proceeds, by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithSeller;
(c) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then‑outstanding balance of all Indebtedness, including Indebtedness listed identified on Schedule 1.05(c) (collectivelythe Lien Release Schedule, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(d) the Seller shall deliver to the Purchaser duly executed lien and guarantor releases in respect of the Indebtedness set forth on the Lien Release Schedule;
(e) the Purchaser shall deliver, or shall cause to be delivered, deliver the Indemnification Escrow Amount to the Escrow Agent for deposit into an escrow account (the "Indemnification Escrow Account") established pursuant to the terms of the Escrow Agreement;
(f) the Purchaser shall deliver the Purchase Price Adjustment Escrow Amount to the Escrow Agent for deposit into an escrow account (the "Purchase Price Adjustment Escrow Account") established pursuant to the terms of the Escrow Agreement;
(g) the Purchaser shall pay, on behalf of the Company and its Subsidiaries, all Transaction Expenses to each Person who is owed a portion thereof in accordance with Exhibit C hereto;
(h) the Purchaser shall, as instructed by the Seller and in accordance with Exhibit C hereto, deliver to the Company the Sale Bonus Amount payable at Closing (for distribution, subject to applicable withholding, by the Company to certain members of management as set forth on the Sale Bonus Amount Schedule (the "Sale Bonus Recipients")) by wire transfer of immediately available funds to the account account(s) designated by the Seller;
(i) the Escrow Agreement shall be executed and delivered by each of the Purchaser, the Escrow Agent in writing and the Seller;
(j) CDI Intermediate Holdings, LLC shall deliver to the Purchaser the certificate attached hereto as Exhibit E that complies with the requirements of Treasury Regulations §1.1445 2(b)(2)(iv)(B); provided, however, that the sole remedy for failure to deliver such certificate shall be that the Purchase will withhold the appropriate amounts of U.S. federal income Tax;
(k) the Consulting Termination Agreement shall be executed and delivered by the AEI Consultant and EdgeRock Technologies, LLC;
(l) the Seller shall deliver to the Purchaser certificates dated as of a date not less more than three (3) ten Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, Date as to the Representative good standing of the Representative Expenses by wire transfer Company and each of immediately available funds to the account designated its Subsidiaries issued by the Representative appropriate Governmental Body of the jurisdiction of the Company's and each of its Subsidiaries' organization and each jurisdiction in writing not less than three (3) Business Days prior which the Company and each of its Subsidiaries is licensed or qualified to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid do business as a foreign entity as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, however, in the event that the Transaction Expenses described Seller is unable to deliver any such good standing certificate prior to the Closing, then the Seller will deliver such certificate to the Purchaser promptly following the Closing and the Seller will be solely responsible for paying any and all filing fees, Taxes, penalties, interest amounts and other costs and expenses associated therewith;
(m) the Seller shall deliver to the Purchaser executed resignations of the officers, directors and managers of the Company and its Subsidiaries specified on the Director and Officer Schedule;
(n) the Seller shall deliver to the Purchaser a certificate of an authorized officer of the Seller, dated as of the Closing Date, certifying solely in clauses their capacity as an officer (i) that attached thereto are true, correct and complete copies of all resolutions adopted by the board of managers of the Seller authorizing the execution, delivery and performance of this Agreement and the Seller Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby, and (ii) the incumbency and (vii) true signatures of those officers of the definition thereof shall be paid Seller duly authorized to act on its behalf in connection with the Company for processing through its payroll;transactions contemplated by this Agreement and the Seller Documents and to execute and deliver this Agreement and the Seller Documents; and
(go) the Company shall deliver to the Purchaser evidence a certificate of an authorized officer of the Company, dated as of the Closing Date, certifying solely in their capacity as an officer (i) that attached thereto are true, correct and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the Company Documents and the consummation of the transactions contemplated hereby and thereby, and that all Liens such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby, (ii) the incumbency and true signatures of those officers of the Company duly authorized to act on its behalf in connection with the transactions contemplated by this Agreement and the Company Documents and to execute and deliver this Agreement and the Company Documents, (iii) that attached thereto is a true, correct and complete copy of the certificate of incorporation of the Company, as in full force and effect on the Company’s assets securing Funded Indebtedness date hereof, and such certificate of incorporation has not been amended except as reflected in such copy, and (in each caseiv) that attached thereto is a true, other than Permitted Liens) shall be released upon the payment correct and complete copy of the Funded Indebtedness or otherwise upon bylaws of the Closing; and
(h) Company, as in full force and effect on the Purchaserdate hereof, each Trilogy Party and each Seller shall make such other deliveries bylaws have not been amended except as are required from reflected in such party by Article II hereofcopy.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(ai) each the Seller shall (i) deliver to the Purchaser (A) all of the stock certificates (if any) evidencing the Purchased Securities owned by such Seller Shares duly endorsed for transfer or accompanied by duly executed security transfer stock powers or other form forms of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser transfer and (iiB) all books and records and other property of the Company or any of its Subsidiaries in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate Seller’s possession or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrantunder Seller’s control;
(bii) the Purchaser shall deliver, or cause (A) deliver to the Company Seller an amount in cash equal to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of (x) the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with Purchase Price minus (y) the Total Equity Value Allocation Certificate Working Capital Escrow Amount by wire transfer of immediately available funds to the account(s) designated by the Representative Seller (which account(s) shall be designated by the Seller to the Purchaser in writing not less than three (3) Business Days prior to at least two business days before the Closing Date; provided) and (B) issue or transfer, that or cause to be issued or transferred, to the Seller the number of Purchaser Shares payable as the Stock Consideration pursuant to the terms hereof, which may be represented by one or more certificates at the Purchaser’s election;
(iii) the Company shall deliver to the Purchaser shall be entitled to engage a paying agent to effect appropriate evidence of releases of any payments Liens (other than any Permitted Liens) related to the Sellers under this Agreement, assets and properties of the Company and its Subsidiaries and payoff letters with respect to any Indebtedness set forth on the Sellers shall take all actions Indebtedness Payoff Schedule outstanding as of the Closing (in each case in a form reasonably required in connection therewithsatisfactory to the Purchaser);
(civ) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of the Indebtedness listed (as set forth on the Indebtedness Payoff Schedule 1.05(cdelivered by Seller or the Company to Purchaser at least two (2) (collectively, the “Funded Indebtedness”), pursuant Business Days prior to the Payoff Letters Closing Date) by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(dv) the Purchaser shall deliverrepay, or shall cause to be deliveredrepaid, on behalf of the Seller, the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of all Seller Transaction Expenses, by wire transfer of immediately available funds, to the Escrow Agent account(s) designated by each Person to whom such Seller Transaction Expenses are to be paid and delivered in writing by Seller or the Company to Purchaser at least two (2) Business Days prior to the Closing Date;
(vi) the Purchaser shall deliver the Working Capital Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateAgent;
(evii) each of the Seller and the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as a duly executed copy of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the ClosingRegistration Rights Agreement; and
(hviii) the Purchaser, each Trilogy Party Purchaser and each the Seller shall make such other deliveries as are required from such party by Article II hereof.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller the Purchaser shall (i) deliver to the Purchaser all of Seller the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transferClosing Cash Consideration, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three Seller;
(3b) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments deposit $19,875,000 (the “Escrow Amount”) into an escrow account (the “Escrow Account”) established pursuant to the Sellers under this terms and conditions of an escrow agreement (the “Escrow Agreement”) by and among the Purchaser, the Seller and Wilmington Trust Company, as escrow agent, or such other escrow agent as may be reasonably agreed by to the Company parties hereto (the “Escrow Agent”), substantially in the form of Exhibit B attached hereto, it being agreed that Purchaser and Seller shall negotiate in good faith with respect to any changes thereto proposed by the Sellers shall take all actions reasonably required in connection therewithEscrow Agent;
(c) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness listed for borrowed money set forth on Schedule 1.05(c) (collectively2.02, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness (provided that all such amounts repaid by Purchaser shall be included in the Payoff Letters, the funding Indebtedness for such repayment to be obtained first from the proceeds purposes of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingArticle I);
(d) the Purchaser Seller shall deliver, or shall cause to be delivered, deliver to the Escrow Agent Purchaser stock certificates representing all of the Escrow Amount Shares, free and clear of all Liens, which certificates shall be duly endorsed to Purchaser or accompanied by wire transfer of immediately available funds to the account designated by the Escrow Agent powers duly executed in writing not less than three (3) Business Days prior to the Closing Dateblank;
(e) the unless Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative requests in writing not less than three (3otherwise, a resignation from each director and officer of the Company and each of its Subsidiaries, effective as of the Closing, resigning from his or her position(s) Business Days prior to as a director and/or officer of the Closing DateCompany and each of its Subsidiaries;
(f) the Purchaser shall deliverPurchaser, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) and the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II III hereof; and
(g) simultaneously with the Closing, the Purchaser shall pay, or cause to be paid, on behalf of the Seller and the Company (as applicable), the Estimated Transaction Expenses by wire transfer of immediately available funds as directed by the Seller.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (at the “Closing Transactions”) on the Closing DateClosing:
(a) each Seller Purchaser shall (i) deliver to the Purchaser all of the certificates Sellers (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with their Pro Rata Ownership Percentages) the Total Equity Value Allocation Certificate Closing Purchase Price, by wire transfer of immediately available funds to the account(s) account of each Seller designated by the Representative in writing not less than three by Sellers' Representative or such Seller to Purchaser;
(3b) Business Days prior Purchaser shall deposit the Indemnification Escrow Amount into an escrow account (the "Indemnification Escrow Account") with [***] (the "Escrow Agent") pursuant to the Closing Date; provided, that terms and conditions set forth in the Purchaser shall be entitled to engage a paying agent to effect any payments to Escrow Agreement attached hereto as Exhibit E (the Sellers under this "Escrow Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith");
(c) Purchaser shall deposit the Adjustment Escrow Amount into an escrow account (the "Adjustment Escrow Account") with the Escrow Agent pursuant to the terms and conditions set forth in the Escrow Agreement;
(d) Sellers' Representative shall deliver to Purchaser appropriate payoff letters ("Payoff Letters") (including a customary per diem) from the holders of Indebtedness for each item of Indebtedness set forth on the Repaid Indebtedness Schedule and has made arrangements for such holders of such Indebtedness to deliver, subject to the receipt of the applicable payoff amounts, all related Lien releases (or authorization to file Lien releases) to Purchaser as soon as practicable after the Closing;
(e) Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesCompany, all amounts necessary to discharge fully the then outstanding balance of all items of Indebtedness listed set forth on Schedule 1.05(c) (collectivelythe Repaid Indebtedness Schedule, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(df) the Purchaser shall deliverpay, or shall cause to be deliveredpaid, to on behalf of Sellers and the Escrow Agent Company (as applicable), the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Estimated Transaction Expenses by wire transfer of immediately available funds to the account designated as directed by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payrollCompany;
(g) Purchaser shall deposit the Sellers’ Representative Holdback Amount into an account designated by the Sellers’ Representative in writing prior to Closing;
(h) Sellers shall deliver to Purchaser the Purchased Interests, free and clear of all Liens other than applicable federal and state securities Law restrictions, pursuant to assignments of limited liability company interests duly executed by each Seller;
(i) The Company shall deliver to Purchaser a statement in accordance with Treasury regulations Section 1.1445-2(c) that it is not a U.S. real property holding corporation;
(j) The Company shall deliver to Purchaser certified copies of resolutions duly adopted by the Company's managers, authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby, and the consummation of all transactions contemplated hereby and thereby;
(k) Sellers' Representative shall deliver to Purchaser evidence that all Liens reasonably satisfactory to Purchaser of the termination of each Affiliate Agreement set forth on the Company’s assets securing Funded Indebtedness Terminated Contracts Schedule at or prior to Closing such that the Company have no liability pursuant to each such Affiliate Agreement;
(in each case, other than Permitted Liensl) Sellers' Representative shall be released upon the payment deliver to Purchaser resignations and releases of managers and officers of the Funded Indebtedness or otherwise upon Company in a form reasonably acceptable to Purchaser;
(m) Purchaser, Sellers' Representative and the ClosingEscrow Agent shall each execute and deliver a counterpart of the Escrow Agreement;
(n) Sellers' Representative shall deliver the Employment Agreement in the form attached hereto as Exhibit F-1 duly executed by [***], the Offer Letter in the form attached hereto as Exhibit F-2 duly executed by [***], the Offer Letter in the form attached hereto as Exhibit F-3 duly executed by [***] and the Employee Invention Assignment Agreement in the form attached hereto as Exhibit F-4 duly executed by each of [***] and [***], respectively;
(o) Sellers' Representative shall deliver the Restrictive Covenant Agreements in the forms attached hereto as Exhibit G duly executed by each of [***] and [***], respectively; and
(hp) each of the Purchaser, each Trilogy Party and each Seller Class B Sellers shall make such other deliveries as are required from such party by Article II hereofhave delivered a duly executed ▇▇▇▇▇▇▇.
Appears in 1 contract
Sources: Securities Purchase Agreement (Dyadic International Inc)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (at the “Closing Transactions”) on the Closing Date:Closing.
(a) each Seller shall (i) deliver to the Purchaser all of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith;
(c) the The Purchaser shall repay, or cause to be repaid, on behalf of the Company or AQ Seller, all amounts necessary to release the Liens upon the assets of the Company and its SubsidiariesSubsidiaries under the Funded Indebtedness as set forth in lien release letters with respect to such Funded Indebtedness (the “Release Letters”) delivered to the Purchaser at least two (2) Business Days prior to the Closing Date which Release Letters will provide that upon receipt by the lenders of the amounts set forth in each such Release Letter, the Indebtedness listed on Schedule 1.05(c) (collectively, Company and its Subsidiaries shall have no further obligations with respect to the “applicable Funded Indebtedness”), pursuant such amounts to the Payoff Letters be paid by wire transfer of immediately available funds to the account(s) designated to the Purchaser prior to the Closing by the holders of such Closing Funded Indebtedness in the Payoff Release Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;.
(db) the The Purchaser shall deliverdeposit, or shall cause to be delivereddeposited, to the Escrow Agent the Escrow Amount in the Escrow Account by wire transfer of immediately available funds to the an account designated by the Escrow Agent in writing not less than three (3) Business Days to the Purchaser prior to the Closing Date;by the Escrow Agent.
(ec) the The Purchaser shall deliver, or shall cause to be delivered, to the Representative Paying Agent for the benefit of the Representative, the Representative Expenses Expense Holdback Amount, by wire transfer of immediately available funds to the an account designated by the Representative in writing not less than three (3) Business Days to the Purchaser prior to the Closing Date;by the Paying Agent.
(fd) the The Purchaser shall deliver, or shall cause to be delivered, to the applicable payees Paying Agent, for the Transaction Expenses that remain unpaid as benefit of the Sellers, the Closing Cash Proceeds less the amount (the “Payoff Amount”), if any, by which the amount delivered in respect of Funded Indebtedness pursuant to Section 1.04(a) exceeds Estimated Indebtedness, by wire transfer of immediately available funds to the accounts an account designated by the payees thereof in writing not less than three (3) Business Days to the Purchaser prior to the Closing Date; providedby the Paying Agent, that such Closing Cash Proceeds to be delivered by the Transaction Expenses described Paying Agent to each Seller in clauses accordance with such Seller’s respective percentage set forth opposite such Seller’s name on the attached Schedule I (iisuch Seller’s “Allocation Percentage”) and (vii) of the definition thereof shall be paid based on a schedule provided to the Company for processing through its payroll;Paying Agent by the Representative (with the portion of Closing Cash Proceeds distributable to AQ Seller being reduced by the Payoff Amount).
(ge) the Company AQ Seller shall deliver to the Purchaser evidence that all Liens on a duly executed assignment instrument transferring the Company’s assets securing Funded Indebtedness (in each caseCompany Interests, other than Permitted Liensthe Blocker Interests, to the Purchaser.
(f) Each Blocker Seller shall be released upon deliver to the payment Purchaser certificates, if applicable, duly endorsed in blank or with duly executed transfer powers attached or duly executed transfer instruments representing all of the Funded Indebtedness issued and outstanding Blocker Stock of the Blocker Corp set forth opposite such Blocker Seller’s name on the attached Schedule I (or, in the case of any lost, stolen or otherwise upon destroyed certificates with respect to any shares of Blocker Stock, an affidavit of lost certificate with respect to such shares of Blocker Stock).
(g) The Purchaser shall pay, or cause to be paid, on behalf of the Company or AQ Seller, all Estimated Transaction Expenses to each Person who is owed a portion thereof as identified in writing, together with wire instructions, by the Company to the Purchaser prior to the Closing; and.
(h) the The Purchaser, each Trilogy Party the Company and each Seller the Sellers shall make such other deliveries as are required from such party by Article II hereofARTICLE IX.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller the Company and the Merger Sub shall (i) deliver to the Purchaser all cause a duly executed copy of the certificates (if any) evidencing Certificate of Merger to be filed with the Purchased Securities owned Secretary of State of the State of Delaware and make all other filings or recordings required by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, Delaware Law in blank or to connection with the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantMerger;
(b) the Purchaser shall deliver, deliver or cause to be delivered to the Company Paying Agent an aggregate amount equal to deliver in the case of Members’ Closing Consideration and the Merger Cash Recipients, Warrantholders’ Closing Consideration (for distribution by the Paying Agent to each Seller Member and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled Warrantholder in accordance with the Total Equity Value Allocation Certificate Section 2.03), by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithPaying Agent;
(c) the Purchaser shall, as instructed by the Representative, deliver or cause to be delivered to the Company an aggregate amount equal to the Optionholders’ Closing Consideration (for distribution by the Company to each Optionholder of such holder’s portion of the Estimated Closing Cash Proceeds as determined in accordance with Section 2.04(d)), by wire transfer of immediately available funds to the account(s) designated by the Representative;
(d) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesCompany, all amounts necessary to discharge fully the then‑outstanding balance of all Indebtedness identified on the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to and set forth in the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the such Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(de) the Purchaser shall deliver, or shall cause to be delivered, deliver the Purchase Price Adjustment Escrow Amount to the Escrow Agent for deposit into an escrow account (the “Purchase Price Adjustment Escrow Account”) established pursuant to the terms of the Escrow Agreement;
(f) the Purchaser shall deliver the Representative Holdback Amount by wire transfer of immediately available funds to the account account(s) designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payrollRepresentative;
(g) the Company Purchaser shall deliver pay, on behalf of the Company, all Transaction Expenses to each Person who is owed a portion thereof as set forth on the Transaction Expenses Schedule and pursuant to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (invoices in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closingrespect thereof; and
(h) the Purchaser, each Trilogy Party the Merger Sub, the Company and each Seller the Representative (on behalf of the Members, Optionholders and Warrantholders) shall make such other deliveries as are required from such party by Article II hereofIV.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller the Sellers shall (i) deliver to the Purchaser Buyer all of the certificates (certificates, if any) , evidencing the Purchased Securities owned by such Seller Securities, duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) Buyer shall deliver to the Purchaser shall deliver, or cause Sellers the Company Purchase Price (excluding the Escrow Amount and the amount required to deliver repay Closing Indebtedness) in the case of following manner: (i) the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate cash portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate shall be paid by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than Sellers at least three (3) Business Days business days prior to the Closing Date; provided, that Date and (ii) the Purchaser equity portion shall be entitled to engage a paying agent to effect any payments to paid in Buyer Units in the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithform of certificates evidencing such Buyer Units;
(c) the Purchaser Buyer shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, the Closing Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in at least three (3) business days prior to the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingClosing Date;
(d) the Purchaser Buyer shall deliver, or shall cause to be delivered, to the Escrow Agent deliver the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateAgent;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company Sellers shall deliver to the Purchaser Buyer evidence satisfactory to Buyer that all Liens on the Seller Securities and/or the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Closing Indebtedness or otherwise upon in full on terms and conditions reasonably acceptable to the Closing; andSellers, Buyer and the holders of such Liens;
(hf) the Purchaser, each Trilogy Party Sellers shall have paid or assumed all of the Sellers’ Expenses as set forth in Section 11.02;
(g) Buyer and each Seller the Sellers shall make such other deliveries as are required from such party by Article II III hereof; and
(h) the Investors shall repay the Investor Loans and the Company shall release the Investor Pledges.
Appears in 1 contract
Sources: Contribution and Sale Agreement (Eagle Rock Energy Partners L P)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller the Sellers shall (i) deliver to the Purchaser Buyer all of the certificates (certificates, if any) , evidencing the Purchased Securities owned by such Seller Securities, duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) Buyer shall deliver to the Purchaser shall deliver, or cause Sellers the Company Purchase Price (excluding the Escrow Amount and the amount required to deliver repay Closing Indebtedness) in the case of following manner: (i) the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate cash portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate shall be paid by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than Sellers at least three (3) Business Days business days prior to the Closing Date; provided, that Date and (ii) the Purchaser equity portion shall be entitled to engage a paying agent to effect any payments to paid in Buyer Units in the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithform of certificates evidencing such Buyer Units;
(c) the Purchaser Buyer shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, the Closing Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in at least three (3) business days prior to the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingClosing Date;
(d) the Purchaser Buyer shall deliver, or shall cause to be delivered, to the Escrow Agent deliver the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateAgent;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company Sellers shall deliver to the Purchaser Buyer evidence satisfactory to Buyer that all Liens on the Seller Securities and/or the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Closing Indebtedness in full on terms and conditions reasonably acceptable to the Sellers, Buyer and the holders of such Liens;
(f) the Sellers shall have paid or otherwise upon assumed all of the ClosingSellers’ Expenses as set forth in Section 11.02; and
(hg) Buyer and the Purchaser, each Trilogy Party and each Seller Sellers shall make such other deliveries as are required from such party by Article II III hereof.
Appears in 1 contract
Sources: Contribution and Sale Agreement (Eagle Rock Energy Partners L P)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller the Company shall (i) deliver cause the Contribution to occur prior to the Purchaser all of the certificates Closing (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or it has not occurred prior to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantClosing Date);
(b) the Company and the Merger Sub shall cause the Certificate of Merger to be executed, acknowledged and filed with the Secretary of State of the State of Delaware;
(c) the Purchaser shall deliverdeposit an amount equal to (i) the Common Stock Merger Consideration plus (ii) the Closing Residual Cash Consideration, by wire transfer of immediately available funds into the account established by the Representative for purposes of the Representative paying the Stockholders in accordance with Section 1.03;
(d) in accordance with Section 1.03, the Representative shall deliver to each holder of Company Common Stock such holder’s portion of the Common Stock Merger Consideration (as determined in accordance with Section 1.02), by check, cash or wire transfer of immediately available funds to the account(s) designated by such holder in such holder’s Transmittal Letter;
(e) in accordance with Section 1.03, the Representative shall deliver to each holder of Preferred Stock such holder’s portion of the Closing Residual Cash Consideration (as determined in accordance with Section 1.02), by check, cash or wire transfer of immediately available funds to the account(s) designated by such holder in such holder’s Transmittal Letter;
(f) the Purchaser shall deposit $5,000,000 (the “Purchase Price Adjustment Escrow Amount”) into an escrow account (the “Purchase Price Adjustment Escrow Account”) established pursuant to the terms and conditions of an escrow agreement by and among the Purchaser, the Representative and ▇▇▇▇▇ Fargo, N.A., as escrow agent (the “Escrow Agent”), substantially in the form of Exhibit C attached hereto (the “Escrow Agreement”);
(g) the Purchaser shall deposit $30,000,000 (the “Indemnity Escrow Amount” and together with the Purchase Price Adjustment Escrow Amount, the “Escrow Amount”) into an escrow account (the “Indemnity Escrow Account”) established pursuant to the terms and conditions of the Escrow Agreement;
(h) the Purchaser shall repay, or cause to be repaid, on behalf of the Company, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness in respect of the Company to deliver in the case of the Merger Cash RecipientsNote, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior NPC LLC and, upon receipt of such repayment, NPC LLC shall deliver to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and Company the Company and the Sellers shall take all actions reasonably required Note marked “paid in connection therewithfull”;
(ci) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness listed set forth on Schedule 1.05(c) (collectively, the “Funded Indebtedness”2.02(i), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(dj) the Purchaser, the Company and the Representative (on behalf of the Stockholders) shall make such other deliveries as are required by Article III hereof;
(k) simultaneously with the Closing, the Purchaser shall deliverpay, or shall cause to be deliveredpaid, to on behalf of the Escrow Agent Stockholders and the Escrow Amount by wire transfer of immediately available funds to Company (as applicable), the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Transaction Expenses by wire transfer of immediately available funds to the account designated as directed by the Representative in writing not less than three (3) Business Days prior to the Closing Date;Representative; and
(fl) the Purchaser shall deliver, or shall cause to be delivered, fund an amount equal to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds OLTL Reserve Amount to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereof.
Appears in 1 contract
Sources: Merger Agreement (Vantiv, Inc.)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller the Company and Merger Sub shall (i) deliver to the Purchaser all cause a duly executed copy of the certificates (if any) evidencing Certificate of Merger to be filed with the Purchased Securities owned Secretary of State of the State of Delaware and make all other filings or recordings required by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, Delaware Law in blank or to connection with the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;Merger.
(b) the Purchaser Parent shall deliver, deliver or cause to be delivered to the Company Disbursing Agent:
(i) an aggregate amount equal to deliver in (A) the case sum of the Preferred Unit Merger Cash RecipientsConsideration and Common Unit Merger Consideration less (B) $100,000,000 (for further distribution by the Disbursing Agent to the holder of the Preferred Units and Common Units of an amount equal to the Preferred Value and Closing Common Unit Value, to respectively and in each Seller case, in respect of each Preferred Unit and each Merger Cash Recipient Common Unit held by the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate holder), by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithDisbursing Agent;
(cii) all amounts necessary to discharge fully the Purchaser shall repay, or cause to be repaidthen-outstanding balance of all Funded Indebtedness (for distribution by the Disbursing Agent, on behalf of the Company and or its Subsidiaries, the Indebtedness listed on Schedule 1.05(c) (collectivelyas applicable, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(dIndebtedness) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateDisbursing Agent;
(eiii) the Purchaser shall deliver, or shall cause to be delivered, Purchase Price Adjustment Escrow Amount for distribution by the Disbursing Agent to the Representative Escrow Agent for deposit into an escrow account (the “Purchase Price Adjustment Escrow Account”) established pursuant to the terms of the Escrow Agreement;
(iv) the Representative Expenses Holdback Amount (for distribution by the Disbursing Agent to the Representative) by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;Disbursing Agent; and
(fv) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the all Transaction Expenses (other than Transaction Expenses that remain unpaid as are compensatory payments to employees or other service providers of the Closing Company or its Subsidiaries, if any) (for distribution by the Disbursing Agent, on behalf of the Company, to each Person who is owed a portion thereof) by wire transfer of immediately available funds to the accounts account designated by the payees thereof in writing not less than three Disbursing Agent.
(3c) Business Days prior Parent shall deliver or cause to be delivered to Seller 1,470,589 validly issued, fully paid and non-assessable shares of Cognizant Common Stock (the “Common Stock Consideration”) free and clear of all Liens.
(d) Parent shall pay or cause to be paid to an account designated by the Company:
(i) an aggregate amount equal to the Optionholders’ Closing DateConsideration (for distribution by the Company or the applicable Subsidiary through the payroll processing system of the Company or such applicable Subsidiary to each Optionholder (or, for non-employee Optionholders, through the standard accounts payable procedures of the Company or such applicable Subsidiary to such persons) of such holder’s portion of the Estimated Closing Cash Proceeds as determined in accordance with Section 2.04); provided, that the Transaction Expenses described in clauses and
(ii) and (vii) an aggregate amount equal to all Transaction Expenses that are compensatory payments to employees or other service providers of the definition thereof shall be paid to the Company for processing through or its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness Subsidiaries, if any, (in each case, for distribution by the Company or such applicable Subsidiary to such employees or other service providers through the payroll processing system of the Company or such applicable Subsidiary).
(e) Parent shall deliver or cause to be delivered to the Company and the Representative a duly executed counterpart of each of the Escrow Agreement, the Disbursing Agent Agreement, and the certificate delivered pursuant to Section 4.02(c).
(f) the Company and the Representative shall deliver or cause to be delivered to Parent and Merger Sub, each of the following:
(i) a duly executed counterpart of each of the Escrow Agreement, the Disbursing Agent Agreement, Consulting Termination Agreement and the certificates contemplated to be delivered pursuant to Section 4.01(c) and Section 12.08;
(ii) duly executed copies of the Reorganization Documents by each of the parties thereto;
(iii) duly executed copies of the Payoff Letters issued with respect to the Funded Indebtedness;
(iv) duly executed letters of resignation from the directors, officers, and managers of the Company and its Subsidiaries, to the extent employed by, or an equityholder of, any AEI Consultant or any Affiliate thereof (other than Permitted Liensthe Company and its Subsidiaries), which are each set forth on Annex 7.07 attached hereto;
(v) shall be released upon the payment copies of the Funded Indebtedness certificate of good standing (or otherwise upon its equivalent, if applicable) of the ClosingCompany issued on or within five (5) days prior to the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of the Company’s organization;
(vi) a duly executed certificate of the secretary or an assistant secretary of the Company and each of its Subsidiaries, dated the Closing Date, in form and substance reasonably satisfactory to Parent, as to: (A) no amendments to the Governing Documents of such Person since the date hereof (expect as expressly provided in this Agreement, including the Reorganization Plan); (B) the current other Governing Documents of such Person; and (C) any resolutions of the board of directors or other authorizing body (or a duly authorized committee thereof) of such Person relating to the approval, adoption or performance (as applicable) of this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby;
(vii) a duly executed copy of the Consulting Termination Agreement by the Company and the AEI Consultants;
(viii) written consent of the board of managers of the Company authorizing and directing the termination of the 401(k) Plans;
(ix) the Certificate of ▇▇▇▇▇▇ executed by the Company;
(x) evidence that each Optionholder Notice was provided in accordance with Section 7.10; and
(hxi) the PurchaserCompanies House Authentication Code for each of the UK Subsidiaries.
(g) Parent, each Trilogy Party Merger Sub, the Company and each Seller the Representative shall make such other deliveries as are required from such party by Article II hereofIV. For the avoidance of doubt, and notwithstanding anything contained herein to the contrary, the failure of the Unitholder or any Optionholder to satisfy any of the deliveries set forth in Section 2.03 shall not affect Parent’s obligations to deliver to the Unitholder or any Optionholder (or the Disbursing Agent or the Company for further distribution to such Unitholder or Optionholder, as applicable) the portion of the Merger Consideration to which such other Unitholder or Optionholder is entitled at Closing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Cognizant Technology Solutions Corp)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall will consummate the following transactions (the “"Closing Transactions”") on the Closing Date:
(a) each Seller shall (i) deliver the Company and Merger Sub will cause the Certificate of Merger to be executed and filed with the Purchaser all Secretary of State of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form State of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantDelaware;
(b) the Purchaser shall deliverin accordance with Section 1.03, Parent will deposit, or cause to be deposited, by wire transfer of immediately available funds, into a custodial account established pursuant to the Company terms and conditions of a paying agent agreement in a form to deliver in be mutually agreed upon among the case of Representative, Parent and the Merger Cash RecipientsPaying Agent (the "Paying Agent Agreement"), an amount (to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled be paid out in accordance with Section 1.03) equal to (i) the Total Equity Value Allocation Certificate Merger Consideration (as determined in accordance with Section 1.02), minus (ii) the Option Merger Consideration;
(c) Parent will deposit, or cause to be deposited with the Company, by wire transfer of immediately available funds, an amount equal to the Option Merger Consideration, to be paid out in accordance with Section 1.04;
(d) Parent will pay, or cause to be paid, an amount equal to the Adjustment Escrow Amount to the Escrow Agent by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithAdjustment Escrow Account;
(ce) the Purchaser shall Company will deliver to Parent payoff letters with respect to the Indebtedness set forth on Schedule 2.01(e) and will make arrangements reasonably satisfactory to Parent for holders of such Indebtedness to deliver all related Lien releases to Parent as soon as practicable after the Closing;
(f) Parent will repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness listed set forth on Schedule 1.05(c) (collectively, the “Funded Indebtedness”2.01(e), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Lettersrelated payoff letters, the funding for such repayment which payoff letters shall be in form and substance reasonably satisfactory to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingParent;
(dg) the Purchaser shall deliverParent will pay, or shall cause to be deliveredpaid, to on behalf of the Escrow Agent Stockholders, Optionholders and the Escrow Amount by wire transfer of immediately available funds to Company and its Subsidiaries (as applicable), the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative unpaid Transaction Expenses by wire transfer of immediately available funds to the account designated as directed by the Representative in writing not less than three (3) Business Days prior to the Closing DateRepresentative;
(fh) the Purchaser shall deliver, or shall cause to be delivered, Parent will pay an amount equal to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds Representative Reserve Fund to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the ClosingRepresentative; and
(hi) Parent, the Purchaser, each Trilogy Party Company and each Seller shall the Representative (on behalf of the Stockholders and Optionholders) will make such other deliveries as are required from such party by Article II hereofIII.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (at the “Closing Transactions”) on the Closing DateClosing:
(a) each Seller the Purchaser shall make the following payments:
(i) deliver to the Purchaser all of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause deliver to the Company Seller Representative (on behalf of and for delivery to deliver in the case of Sellers) the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Preliminary Purchase Price by wire transfer of immediately available funds to the account(s) one or more accounts designated by the Seller Representative in writing not less than to the Purchaser at least three (3) Business Days prior to the anticipated Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith;
(cii) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesAcquired Companies, all amounts required to be paid under the payoff letters delivered pursuant to Section 1.04(c) in order to fully discharge the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant owed to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff LettersPersons thereunder, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated in such payoff letters, which the parties hereto agree shall be treated for Tax purposes (A) in the case of amounts paid with respect to the Holdco Seller’s pro rata share of any Indebtedness of Holdco or any of its Subsidiaries, as if the Purchaser paid such amounts to the Holdco Seller as part of the Purchase Price paid for the Purchased Holdco Interests and the Holdco Seller contributed such amounts to Holdco to fund the repayment by Holdco of such Indebtedness, (B) in the case of Syntron Corp’s pro rata share of any Indebtedness of Holdco or any of its Subsidiaries, as if the Purchaser paid such amounts to the Corp Sellers as part of the Purchase Price paid for the Purchased Syntron Corp Interests and each Corp Seller contributed its pro rata share of such amounts to Syntron Corp for subsequent contribution by Syntron Corp to Holdco to fund the repayment by Holdco of such Indebtedness, and (C) in the case of amounts paid with respect to Indebtedness of Syntron Corp, as if the Purchaser paid such amounts to the Corp Sellers as part of the Purchase Price paid for the Purchased Syntron Corp Interests and each of the Corp Sellers contributed its pro rata share of such amounts to Syntron Corp to fund the repayment by Syntron Corp of such Indebtedness;
(iii) the Purchaser shall deposit the Adjustment Escrow Amount into the Adjustment Escrow Account, the Indemnity Escrow Amount into the Indemnity Escrow Account and, if applicable, the Interim Breach Escrow Amount into the Interim Breach Escrow Account, each such account established pursuant to the terms and conditions of an escrow agreement, substantially in the form of Exhibit A attached hereto (the “Escrow Agreement”), by and among the Purchaser, the Seller Representative and U.S. Bank National Association, as escrow agent (the “Escrow Agent”), to be held for the purpose of securing the obligations of the Seller Representative and the Securityholders in Section 1.05(d) and Article 11;
(iv) the Purchaser shall pay, on behalf of the Acquired Companies, the Estimated Transaction Expenses, by wire transfer of immediately available funds to the accounts designated on the Transaction Expenses Schedule; provided that any amounts treated as wages for income or employment Tax purposes (including, without limitation, the Option Surrender Payments) shall be paid to the applicable Acquired Company, which shall pay such amounts, less applicable withholding Taxes, to the applicable recipient through its payroll system no later than five (5) Business Days after the Closing Date; and
(v) the Purchaser shall deliver to the Seller Representative, by wire transfer of immediately available funds, an amount equal to $1,000,000 (the “Representative Expense Amount”), for the Seller Representative to hold in the Representative Expense Account and disburse in accordance with the terms of this Agreement;
(b) in accordance with the terms and subject to the conditions of the Option Surrender Agreements and this Agreement but without duplication of amounts payable pursuant to Section 1.04(a)(iv), at the Closing, in consideration for the payments specified in the Option Surrender Agreements, paid by or on behalf of Holdco through its payroll system to each Optionholder who has complied with the terms of the applicable Option Surrender Agreement, net of any applicable withholding Tax (each, an “Option Surrender Payment”), each Optionholder shall surrender for cancellation all Options held by such Optionholder. At the Closing, each unexercised Option shall be, by virtue of the consummation of the transactions contemplated by this Agreement and without any action on the part of the parties hereto, cancelled, terminated and shall no longer be exercisable by the payees former holder thereof for any equity interests of Holdco. Syntron Corp’s and Holdco’s manager or board of managers, as applicable, shall adopt the necessary resolutions and take all other actions necessary to effect the treatment of the Options contemplated by this Section 1.04(b). Subject to compliance with the terms of the applicable Option Surrender Agreements, the Option Surrender Payments payable at the Closing shall be paid as provided in writing Section 1.04(a)(iv);
(c) the Seller Representative shall deliver to the Purchaser payoff letters, in form and substance reasonably satisfactory to the Purchaser, from each holder of Indebtedness listed on Schedule 1.04(c) (the “Repaid Indebtedness”), which shall include a complete release of all Liens, liabilities and other obligations with respect to such Indebtedness and authorization to file UCC-3 termination statements (or other comparable documents) for all UCC-1 financing statements (or other comparable documents) filed in connection with any Lien, in each case, effective upon the discharge of such Indebtedness at the Closing;
(d) the Seller Representative shall also deliver, or cause to be delivered, to the Purchaser each of the following:
(i) equity interest assignments, in form and substance reasonably satisfactory to the Purchaser, duly executed by the Sellers effecting the transfer of the Purchased Interests to the Purchaser (or one of the Purchaser’s Subsidiaries designated by the Purchaser);
(ii) a certificate executed by an authorized officer or an authorized director of each of Syntron Corp and Holdco, in form and substance reasonably acceptable to the Purchaser, dated as of the Closing Date, stating that the preconditions specified in Sections 2.01(a), 2.01(b), 2.01(c) and 2.01(e) have been satisfied;
(iii) a certificate of the Secretary (or officer with equivalent responsibilities) of each of Syntron Corp and Holdco, in form and substance reasonably satisfactory to the Purchaser, dated as of the Closing Date and attaching: (A) a copy of the certificate of formation of each of Syntron Corp and Holdco, as applicable, certified by the Secretary of State of the State of Delaware not less more than three ten (310) Business Days prior to the Closing Date; provided(B) a certificate of good standing of Syntron Corp and Holdco, as applicable, certified by the Secretary of State of the State of Delaware and issued not more than ten (10) Business Days prior to the Closing Date; (C) a copy of the limited liability company agreement of each of Syntron Corp and Holdco, as applicable; (D) a copy of the resolutions duly adopted by each of Syntron Corp’s and Holdco’s manager or board of managers, as applicable, authorizing the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby; and (E) in the case of Holdco, a copy of the resolutions duly adopted by Holdco’s board of managers providing for the termination and cancellation of all outstanding Options in accordance with the terms of this Agreement and the Option Surrender Agreements, effective immediately prior to the Closing;
(iv) evidence that Holdco has terminated Holdco’s 401(k) Plan, if and to the Transaction Expenses described extent required under Section 6.06, prospectively effective no later than the day prior to the Closing Date;
(v) evidence that all contracts and other arrangements listed on Schedule 1.04(d)(v) have been terminated on terms reasonably satisfactory to the Purchaser;
(vi) copies of resignations or removals, effective as of the Closing and in clauses form and substance reasonably satisfactory to the Purchaser, of each director, officer and manager of each Acquired Company (ii) and other than any such resignations which the Purchaser designates, by written notice to the Seller Representative, as unnecessary);
(vii) instruments in a form reasonably satisfactory to the Purchaser evidencing (A) the consummation of the definition thereof shall be paid Restructuring Transactions not less than one (1) calendar day prior to the Company for processing through its payroll;Closing Date, but not prior to January 1, 2019, and (B) the distribution to the Holdco Seller of the capital stock of Technisys, Inc. prior to the Restructuring Transactions (the “Distribution”); and
(gviii) a copy of a CD or DVD-ROM containing a true, correct and complete copy of the Acquired Companies’ electronic data room for “Project Surf” hosted by Intralinks as of the date hereof and as of the Closing.
(e) the Company Purchaser shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in Seller Representative each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon following:
(i) a certificate executed by an officer of the ClosingPurchaser, in form and substance reasonably acceptable to the Seller Representative, dated as of the Closing Date, stating that the preconditions specified in Sections 2.02(a), 2.02(b) and 2.02(d) have been satisfied; and
(hii) a copy of the resolutions duly adopted by the Purchaser’s board of directors (or equivalent governing body) authorizing the execution, each Trilogy Party delivery and each Seller shall make such other deliveries as are required from such party by Article II hereofperformance of this Agreement and the consummation of the transactions contemplated hereby.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto Parties shall consummate the following transactions (at or prior to the “Closing Transactions”) on the Closing DateClosing:
(a) each Seller the Company and Merger Sub shall (i) deliver cause the Certificate of Merger to be executed, acknowledged and filed with the Purchaser all Secretary of State of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form State of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantDelaware;
(b) Parent shall deliver to the Purchaser shall deliverPayments Administrator, or cause by wire transfer of immediately available funds, an amount equal to the Company to deliver in the case of the Merger Closing Cash Recipients, to each Seller and each Merger Cash Recipient Consideration minus the aggregate portion Closing Option Consideration minus the MIP Closing Consideration, which aggregate amount shall be paid out by the Payments Administrator to holders of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled Company Stock in accordance with Section 1.04 and to holders of Warrants in accordance with Section 1.03(d);
(c) in accordance with Section 1.03, Parent shall deliver the Total Equity Value Allocation Certificate aggregate Closing Option Consideration and the MIP Closing Consideration set forth in the Estimated Closing Statement to the Company, for the benefit of the holders of Cash-Out Options and the MIP Participants, respectively, by wire transfer of immediately available funds to the account designated in writing by the Company;
(d) in accordance with Section 1.05, Parent shall deliver to the Representative the Representative Amount, by wire transfer of immediately available funds to the account(s) designated in writing by the Representative;
(e) Parent shall deposit the Purchase Price Adjustment Escrow Amount into the Purchase Price Adjustment Escrow Account;
(f) Parent shall deposit the Indemnification Escrow Amount into the Indemnification Escrow Account;
(g) Parent shall deliver to the Company:
(i) the Escrow Agreement and the Payments Administrator Agreement, each duly executed by Parent;
(ii) a certificate of an authorized officer of Parent and Merger Sub in his or her capacity as such, dated as of the Closing Date, stating that the preconditions specified in Sections 8.02(a) and 8.02(b) have been satisfied;
(iii) certified copies of resolutions of the requisite holders of the voting shares of Merger Sub approving the consummation of the transactions contemplated by this Agreement; and
(iv) certified copies of the resolutions duly adopted by Parent's Board of Directors (or its equivalent governing body) and Merger Sub's Board of Directors authorizing the execution, delivery and performance of this Agreement.
(h) Representative shall deliver to Parent:
(i) the Escrow Agreement and the Payments Administrator Agreement, each duly executed by Representative.
(i) The Company shall deliver to Parent:
(i) the Escrow Agreement and the Payments Administrator Agreement, each duly executed by the Company;
(ii) a certificate of an authorized officer of the Company in writing his or her capacity as such, dated as of the Closing Date, stating that the conditions specified in Sections 8.01(a) and 8.01(b) have been satisfied;
(iii) certified copies of resolutions, in form reasonably acceptable to Parent, of the requisite stockholders of the Company for the Stockholder Approval approving the consummation of the transactions contemplated by this Agreement (the "Written Consent");
(iv) a duly executed certificate from the Company, dated as of the Closing Date, to the effect that the Company is not, and has not been, during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a "United States real property holding corporation" within the meaning of Section 897(c) of the Code, which certificate shall be in compliance with the requirements set forth in Treasury Regulations Section 1.1445-2(c)(3)(i), along with the notifications required under Treasury Regulations Section 1.897-2(h)(2);
(v) certified copies of resolutions duly adopted by the Company's Board of Directors authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby, and the consummation of all transactions contemplated hereby and thereby; and
(vi) the Certificate of Incorporation of the Company certified by the Secretary of State of the State of Delaware and a certificate of good standing for the Company from the Secretary of State of the State of Delaware; and
(j) Parent shall pay, or cause to be paid, on behalf of the Company, the Transaction Expenses by wire transfer of immediately available funds as such amounts are set forth in the pay-off, termination and discharge letters delivered to Parent not less than three five (35) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled in form and substance reasonably satisfactory to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith;
(c) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereofParent.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto Parties shall consummate the following transactions (at the “Closing Transactions”) on the Closing DateClosing:
(a) each Seller Investor shall pay, or cause to be paid, to Parent an amount equal to (i) deliver to the Purchaser all of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and Purchase Price minus (ii) in the case of any Seller who is a WarrantholderParent Note Amount, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) an account designated by the Representative in writing not less than three (3) Business Days to Investor prior to the Closing by Parent;
(b) Investor shall cause NATFinCo to, and NATFinCo shall, deliver and issue to Parent the Parent Note;
(c) Investor shall cause Brookfield Corporation to deliver and issue that certain Note Guaranty (the “Note Guaranty”), in the form attached hereto as Exhibit D;
(d) Parent shall transfer to Investor the Purchased Interests, evidenced by an assignment and assumption of the Purchased Interests substantially in the form attached hereto as Exhibit C (the “Assignment and Assumption Agreement”), duly executed by an authorized representative of Parent, such that after giving effect to such transfer, Investor shall own all right, title and interest to a number of Membership Interests constituting an additional 30.0% ownership interest in the Company, such that, after giving effect to the transactions contemplated hereby, Investor will own 49.9% of the Membership Interests of the Company, and Parent will own 50.1% of the Membership Interests of the Company;
(e) the Company shall deliver, or cause to be delivered, to each of Parent and Investor, a copy of the A&R Operating Agreement, duly executed by an authorized representative of the Company, evidencing, effective as of the Closing, the transfer and sale of the Purchased Interests and the other amendments thereto contemplated therein;
(f) Parent shall deliver, or cause to be delivered, to each of the Company and Investor, a counterpart copy of the A&R Operating Agreement, duly executed by an authorized representative of Parent;
(g) Parent shall deliver to Investor a counterpart copy of the Assignment and Assumption Agreement, duly executed by an authorized representative of Parent;
(h) Investor shall deliver to Parent a counterpart copy of the Assignment and Assumption Agreement, duly executed by an authorized representative of Investor;
(i) Investor shall deliver, or cause to be delivered, to each of the Company and Parent, a counterpart copy of the A&R Operating Agreement, duly executed by an authorized representative of Investor;
(j) Parent shall deliver all documentation necessary to effect the MAIT Class B Contribution, which will become effective at 10:01 a.m. New York City time on the Closing Date; provided, that the Purchaser such documentation shall be entitled in form and substance reasonably satisfactory to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith;
(c) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the ClosingInvestor; and
(hk) the PurchaserCompany, each Trilogy Party Parent and each Seller Investor shall make such other deliveries as are required from such party by Article II hereofVI.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller the Sellers shall (i) deliver to the Purchaser all of the certificates (certificates, if any) , evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or Units, accompanied by duly executed security transfer unit powers or other form applicable forms of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, deliver or cause the Company to deliver in the case of the Merger Cash Recipients, be delivered to each Seller and each Merger Cash Recipient the aggregate portion an amount equal to such Seller's Pro Rata Share of the Estimated Total Equity Value to which Closing Cash Proceeds in respect of such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Seller's Common Units, by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithsuch Seller;
(c) the Purchaser shall deliver to the Company an amount equal to the Closing Phantom Award Amount for distribution by the Company to each Phantom Award Recipient of an amount equal to such Phantom Award Recipient's Applicable Phantom Award Portion through the payroll processing system of the Company in accordance with the Company's payroll processes and procedures;
(d) the Purchaser shall deliver to the Company an amount equal to the Closing Option Amount for distribution by the Company to each Optionholder of an amount equal to such Optionholder's Applicable Option Portion through the payroll processing system of the Company in accordance with the Company's payroll processes and procedures;
(e) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and or its Subsidiaries, as applicable, all amounts necessary to discharge fully the then-outstanding balance of all Indebtedness identified on the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(df) the Purchaser shall deliver, or shall cause to be delivered, deliver the Purchase Price Adjustment Escrow Amount to the Escrow Agent for deposit into an escrow account (the "Purchase Price Adjustment Escrow Account") established pursuant to the terms of the Escrow Agreement;
(g) the Purchaser shall pay, on behalf of the Company, all Transaction Expenses (other than Transaction Expenses that are compensatory payments to employees or other service providers of the Company or its Subsidiaries, if any) to each Person who is owed a portion thereof;
(h) the Purchaser shall deliver to the Company an aggregate amount equal to all Transaction Expenses that are compensatory payments to employees or other service providers of the Company or its Subsidiaries, if any, in each case, for distribution by the Company to such employees or other service providers through the payroll processing system of the Company in accordance with the Company's payroll processes and procedures;
(i) the Purchaser shall deliver the Representative Holdback Amount by wire transfer of immediately available funds to the account account(s) designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateRepresentative;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(gj) the Company shall deliver to the Purchaser evidence that all Liens on the Consulting Termination Agreement in the form attached hereto as Exhibit C, duly executed by the Sun Consultant and StonePoint Materials LLC;
(k) the Company shall deliver to Purchaser a certificate of good standing (or its equivalent), dated not more than ten (10) days prior to the Closing Date, with respect to the Company and its Subsidiaries, in each instance, issued by the Secretary of State (or its equivalent) of the applicable jurisdiction of organization of such Person;
(l) the Company shall deliver to the Purchaser copies of resolutions of the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens's Board of Managers approving the termination of the Company 401(k) shall be released Plan one Business Day prior to Closing contingent upon the payment consummation of the Funded Indebtedness or otherwise upon the Closingtransaction contemplated by this Agreement; and
(hm) the Purchaser, each Trilogy Party and each Seller parties hereto shall make such other deliveries as are required from such party by Article II hereofIII.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto Parties shall consummate the following transactions (at the “Closing Transactions”) on the Closing DateClosing:
(a) each Seller the Company and the Merger Sub shall (i) deliver cause the Certificate of Merger to be executed, acknowledged and filed with the Purchaser all Secretary of State of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form State of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantDelaware;
(b) in accordance with Section 1.04, the Purchaser Parent shall deliver, or cause to be delivered to the Company Paying Agent, (i) the portion of the Closing Payment Amount payable to deliver Stockholders (both Qualified Holders and Non-Qualified Holders) and holders of Warrants set forth in the Estimated Closing Statement, in cash, and (ii) evidence of the portion of Aggregate Closing Parent Shares payable to Stockholders and holders of Warrants who are Qualified Holders in book-entry form representing such portion of the Aggregate Closing Parent Shares (or, at the Parent’s election, certificates representing such portion of the Aggregate Closing Parent Shares), in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate such portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Closing Payment Amount, by wire transfer of immediately available funds to the account(s) designated by in the Representative in writing not less than three (3) Business Days prior to the Estimated Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithStatement;
(c) the Purchaser Parent shall deliver, or cause to be delivered, (i) the Closing Option Cash Consideration, and (ii) evidence of the Closing Option Stock Consideration in book-entry form representing the such Parent Shares comprising the Closing Option Stock Consideration (or, at the Parent’s election, certificates representing such Parent Shares comprising the Closing Option Stock Consideration), to the Surviving Company, for the benefit of the holders of Vested Options, in the case of the Closing Option Cash Consideration, by wire transfer of immediately available funds to the account designated in the Estimated Closing Statement;
(d) in accordance with Section 1.05, the Parent shall deliver, or cause to be delivered, to the Securityholder Representative the Representative Amount, by wire transfer of immediately available funds to the account(s) designated in the Estimated Closing Statement;
(e) the Parent shall deliver, or cause to be delivered, the Escrow Amount, the Adjustment Reserve Amount and the Special Escrow Amount into the Escrow Account, Adjustment Reserve Account and Special Escrow Account, respectively, in accordance with Section 1.11 and to the accounts designated in the Estimated Closing Statement;
(f) the Parent shall repay, or cause to be repaid, on behalf of the Surviving Company, all amounts necessary to discharge fully the Estimated Indebtedness for borrowed money, in accordance with payoff letters provided by the Company with respect to such Estimated Indebtedness in form and substance reasonably acceptable to the Parent, and such other documents as Parent may reasonably require to evidence the repayment in full of such Estimated Indebtedness and the termination and release in full of all Liens related thereto (drafts of which payoff letters shall have been delivered to the Parent for its Subsidiaries, review and comment at least five (5) Business Days prior to the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”Closing Date), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingEstimated Closing Statement;
(dg) the Purchaser Parent and the Company shall delivermake such other deliveries as are contemplated by Article VII hereof; and
(h) the Parent shall pay, or shall cause to be deliveredpaid, to on behalf of the Escrow Agent Surviving Company, the Escrow Amount Estimated Transaction Expenses in accordance with invoices provided by the Company, by wire transfer of immediately available funds to the account account(s) designated by in the Escrow Agent in writing not less than three (3) Business Days prior to the Estimated Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereofStatement.
Appears in 1 contract
Sources: Merger Agreement (Proto Labs Inc)
The Closing Transactions. Subject to Upon the terms and subject to the conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
: (a) each Seller without duplication of the transfer required by Section 1.04, the Purchaser shall (i) deliver to the Purchaser all Stockholder Representative (for the benefit of the certificates Stockholders), the Merger Consideration (if any) evidencing less any amounts contemplated to be paid through the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form payroll system of assignment and transfer, in blank or the Surviving Corporation pursuant to the relevant redeeming entity or the Purchaser, all as reasonably acceptable proviso to the Purchaser and (iiSection 2.02(c)) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) account or accounts designated by the Stockholder Representative in writing not less than to the Purchaser at least three (3) Business Days prior to the Closing Date; provided(b) promptly following receipt by the Stockholder Representative of such portion of the Merger Consideration pursuant to Section 2.02(a), that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers Merger Sub shall take all actions reasonably required in connection therewith;
cause the Certificate of Merger to be executed, acknowledged and filed with the Secretary of State of the State of Delaware; (c) promptly following the later of (i) the Effective Time and (ii) the receipt by the Company from any Stockholder of the certificates representing such Stockholder’s shares of Company Stock, or an affidavit contemplated by Section 1.04(e), and a Letter of Transmittal, duly completed and validly executed in accordance with the instructions thereto, and subject to Section 1.04, the Stockholder Representative shall pay to the Stockholder who submitted such Letter of Transmittal an amount equal to the portion of the Merger Consideration to which such Stockholder is entitled pursuant to Section 1.02 in respect of such shares of Company Stock; provided that if a Stockholder is an employee of the Surviving Corporation or any of its Subsidiaries on the Closing Date, the Purchaser shall cause the Surviving Corporation to make such payment to such Stockholder through the payroll system of the Surviving Corporation and its Subsidiaries promptly, but in any event within seven (7) days, after the Closing; (d) promptly following the Effective Time, the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness listed set forth on Schedule 1.05(c) (collectivelythe Closing Indebtedness Schedule, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
Indebtedness; (e) the Purchaser shall deliverPurchaser, or shall cause to be deliveredthe Merger Sub, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) and the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller Stockholder Representative shall make such other deliveries as are required from such party by Article II III hereof.; and 10
Appears in 1 contract
Sources: Merger Agreement
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each the Seller shall (i) deliver to the Purchaser all evidence of assignment of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or Units to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliverpay, or cause the Company to deliver in the case of the Merger Cash Recipientsbe paid, to each the Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Purchase Price by wire transfer of immediately available funds to the account(s) designated by the Representative Seller (which account(s) shall be designated by the Seller to the Purchaser in writing not less than three at least two (32) Business Days prior to business days before the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith);
(c) the Company shall deliver to the Purchaser appropriate payoff letters from the holders of Indebtedness set forth on Schedule 1.4(c) and shall make customary arrangements for such holders of Indebtedness to deliver all related Lien releases to the Purchaser as soon as practicable after the Closing, together with UCC-3 termination statements with respect to the financing statements filed against the assets of the Company and its Subsidiaries, in each case, in form and substance reasonably satisfactory to Purchaser relating to all Indebtedness set forth on Schedule 1.4(c);
(d) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the Indebtedness listed on Schedule 1.05(c) (collectivelythen outstanding balance of all Estimated Indebtedness, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingEstimated Indebtedness;
(de) the Purchaser shall deliverpay, or shall cause to be deliveredpaid, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing DateAgent;
(f) the Purchaser shall deliverpay, or shall cause to be deliveredpaid, to the applicable payees the Transaction Expenses that remain unpaid as on behalf of the Closing Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of all Estimated Transaction Expenses, by wire transfer of immediately available funds funds, to the accounts account(s) designated by each Person to whom such Estimated Transaction Expenses are to be paid, in each case, to the payees thereof in writing extent not less than three (3) Business Days paid by or on behalf of the Seller or its Affiliates prior to the Closing DateClosing; provided, that the Transaction Expenses described in clauses (ii) and (vii) any amounts treated as wages or other compensation for services to a current or former employee of the definition thereof Company shall be paid to the Company for processing Company, which shall pay such amounts, less applicable withholding Taxes, to the applicable recipient through its payroll;payroll system on the first payroll date following the Closing Date; and
(g) the Company shall deliver to Purchaser and the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article ARTICLE II hereofthereof.
Appears in 1 contract
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (promptly following the “Closing Transactions”) on the Closing DateEffective Time:
(a) each Seller On the Closing Date, Parent shall deliver to the Payment Agent, and shall cause the Payment Agent to pay (i) deliver to the Purchaser all of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warranteach Blocker Parent, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, or cause the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate Blocker Parent’s portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Closing Blocker Consideration by wire transfer of immediately available funds to the account(s) designated in writing by such Blocker Parent no later than two Business Days prior to the Closing Date and (ii) subject to Section 1.8, each Unitholder other than the Blockers, such Unitholder’s portion of the Merger Consideration, by wire transfer of immediately available funds or check, as designated by such Unitholder in the Letter of Transmittal submitted by such Unitholder in accordance with Section 1.8, in accordance with and subject to the terms and conditions of Section 1.7(a)(iv)(A), in each case as set forth on the Sale and Merger Consideration Spreadsheet;
(b) On the Closing Date, Parent shall use reasonable best efforts to deliver, or cause to be delivered, to the Securityholders’ Agent the Securityholders’ Agent Expense Fund, by wire transfer of immediately available funds to the account(s) designated in writing by the Representative in writing not less Securityholders’ Agent no later than three (3) two Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith;
(c) On the Purchaser Closing Date, Parent shall use reasonable best efforts to deposit, by wire transfer of immediately available funds, an amount equal to the Specified Escrow Amount with Escrow Agent in accordance with an escrow agreement in a form mutually and reasonably acceptable to Parent and the Securityholders’ Agent, which such escrow agreement will contain the terms set forth on Schedule 1.5(c) (the “Escrow Agreement”);
(d) On the Closing Date, Parent shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesAcquired Companies, an amount equal to the Repaid Indebtedness, by wire transfer of immediately available funds to the account(s) designated in each Pay Off Letter; and
(e) On the Closing Date, Parent shall use reasonable best efforts to pay, or cause to be paid, on behalf of the Acquired Companies, the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters Company Transaction Expenses by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, Company Transaction Expenses no later than two Business Days prior to the Escrow Agent Closing Date (it being understood and agreed that if any payee of such Company Transaction Expenses does not designate the Escrow Amount by wire transfer of immediately available funds account(s) to the account designated by the Escrow Agent in writing not less which such payment shall be made no later than three (3) two Business Days prior to the Closing Date;
(e) , such payment will not be made on the Purchaser Closing Date and instead Parent shall deliverpay, or shall cause to be deliveredpaid, such amounts to such holders promptly after such payee designates such account(s); provided, that any Company Transaction Expenses that are payable to Company Employees (other than consultants or contractors) and required to be treated under the Representative Code as compensation shall instead be paid through the Representative Expenses by wire transfer of immediately available funds to Surviving Company’s payroll no later than the account designated by the Representative in writing not less than three (3) Business Days prior to next regular payroll following the Closing Date;.
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of Any payments contemplated by this Section 1.5 which are not made on the Closing by wire transfer of Date shall be made on the Business Day immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to following the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries except as are required from such party expressly contemplated by Article II hereofSection 1.5(e).
Appears in 1 contract
Sources: Merger Agreement (RealPage, Inc.)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (at the “Closing Transactions”) on the Closing DateClosing:
(a) each Seller shall (i) deliver to the Purchaser all of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliverpay, or cause the Company to deliver in the case of the Merger Cash Recipientsbe paid, to each the Seller and each Merger Cash Recipient the aggregate portion of an amount equal to the Estimated Total Equity Value to which such Seller or Merger Closing Cash Recipient is entitled in accordance Amount, less the Deposit, together with the Total Equity Value Allocation Certificate any interest accrued thereon, by wire transfer of immediately available funds to the account(s) designated in writing by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithSeller;
(b) DKL shall cause to be issued to the Seller or its designee(s) in book entry form the Closing Unit Consideration, all of which DKL Common Units shall contain or be subject to the legend set forth below (the “Private Placement Legend”) on the books and records of the Transfer Agent:
(c) DKL shall deliver to the Seller or its designee(s) documentation evidencing the issuance of the Closing Unit Consideration to the book-entry account of the Seller;
(d) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesGroup, the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to all amounts set forth in the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the applicable Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or Seller and the Company shall cause to be delivered, delivered to the Representative Purchaser one or more customary payoff letters, in each case, duly executed, with respect to all Indebtedness set forth on Schedule 2.03(d) (the Representative Expenses by wire transfer of immediately available funds “Payoff Debt”) and shall be in a form reasonably satisfactory to the account designated Purchaser acting in good faith, including that upon payment of the amount specified in such payoff letter: (A) all commitments thereunder are terminated, (B) all outstanding obligations of the Company Group arising under or related to the applicable Payoff Debt are repaid, discharged and extinguished in full; (C) all Liens and security interests in connection therewith and/or related thereto shall be released; (D) the payee shall (i) take all actions reasonably requested by the Representative in writing not less than three Company to evidence and record such discharge and release as promptly as practicable and (3ii) Business Days prior shall authorize the Company to file the releases and terminations attached thereto; and (E) the payee shall return to the Closing DateCompany all instruments evidencing the applicable Payoff Debt (including all notes) and all collateral securing the applicable Payoff Debt (each such payoff letter, a “Payoff Letter,” and collectively, the “Payoff Letters”);
(f) the Purchaser Seller shall deliver, or shall cause to be delivered, deliver to the applicable payees the Transaction Expenses that remain unpaid Purchaser evidence, effective as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; providedClosing, that the Transaction Expenses described (i) all UCC filings in clauses favor of secured parties in connection with any Indebtedness and (ii) and all Liens (viiother than Permitted Encumbrances) in favor of such secured parties in respect of the definition thereof shall be paid to Purchased Assets have been (or immediately upon consummation of the Company for processing through its payrollClosing will be) terminated and released;
(g) the Seller shall deliver to the Purchaser short form certificates dated within ten (10) days of the Closing Date as to the good standing of each member of the Company Group issued by the Secretary of State of the State of Delaware;
(h) the Purchaser shall deliver the Adjustment Escrow Amount to the Escrow Agent for deposit into an escrow account (the “Adjustment Escrow Account”) established pursuant to the terms of the Escrow Agreement;
(i) the Purchaser shall deliver the Indemnity Escrow Amount to the Escrow Agent for deposit into an escrow account (the “Indemnity Escrow Account”) established pursuant to the terms of the Escrow Agreement;
(j) the Purchaser shall pay, on behalf of the Company Group, all Transaction Expenses set forth on the Closing Statement to each Person who is owed a portion thereof;
(k) the Seller shall deliver to the Purchaser evidence of resignations or removals, effective as of the Closing, of each of the directors, managers and officers of each member of the Company Group appointed or designated to such positions by the Seller;
(l) the Seller and the Purchaser shall deliver duly executed counterparts to the Assignment Agreement;
(m) the Seller or its designee(s) and DKL shall deliver duly executed counterparts to the Registration Rights Agreement;
(n) the Seller and the Purchaser shall deliver duly executed counterparts to the Transition Services Agreement;
(o) the Seller shall deliver to the Purchaser a duly completed IRS Form W-9 in respect of the Seller (or, if the Seller is treated as an entity disregarded as separate from its regarded owner for U.S. federal income tax purposes, the Person that is treated as its regarded owner for such purposes);
(p) the Seller and the Purchaser shall deliver duly executed counterparts to the joint instructions to the Escrow Agent, in a form as reasonably agreed upon by the parties, instructing the Escrow Agent to deliver the Deposit, together with any interest accrued thereon, to Seller;
(q) the Seller shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each caseAffiliate Arrangements, other than Permitted Liensthe Affiliate Arrangements that are being assigned, conveyed and transferred to the Seller or its Non-Company Affiliate as Excluded Items pursuant to Section 7.19, have been terminated as of Closing;
(r) the Seller shall be released upon deliver to the payment Purchaser evidence of a Bill of Sale, duly executed by Seller or its applicable Non-Company Affiliate and the Funded Indebtedness Company, pursuant to which the Seller or otherwise upon its applicable Non-Company Affiliate shall have sold, granted, assigned, conveyed and transferred unto the Company the Assets set forth on Schedule 8.03 prior to the Closing;
(s) the Seller shall deliver to the Purchaser evidence that the Excluded Items have been assigned, conveyed and transferred to the Seller or its Non-Company Affiliate and evidence that such assignee has assumed all obligations and liabilities associated with such Excluded Items, regardless of whether such obligations or liabilities arose prior to, at or after the Closing Date; and
(ht) the Purchaser, each Trilogy Party and each Seller parties hereto shall make such other deliveries as are required from such party by Article II hereofIII.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Delek US Holdings, Inc.)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “"Closing Transactions”") on the Closing Date:
(a) each Seller the Sellers Representative shall (i) deliver to the Purchaser (i) all of the unit certificates evidencing the Units (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer unit powers or other form forms of assignment and transfer, in blank or to evidence reflecting the relevant redeeming entity or transfer of all Units on the Purchaser, all as reasonably acceptable to unit ledger of the Purchaser Company and (ii) all books and records and other property of the Company or any of its Subsidiaries in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate Seller's possession or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against under any claim that may be made against it with respect to such lost certificate or WarrantSeller's control;
(b) the Purchaser shall deliver, or cause (i) deliver to the Company to deliver in the case Sellers Representative (on behalf of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled Sellers in accordance with their respective Allocation Percentages) an amount in cash equal to (x) the Total Equity Value Allocation Certificate Estimated Cash Purchase Price minus (y) the Indemnity Escrow Amount and the Working Capital Escrow Amount, by wire transfer of immediately available funds to the account(s) designated by the Sellers Representative (which account(s) shall be designated by the Sellers Representative to the Purchaser in writing not less than at least three (3) Business Days prior to before the Closing Date; provided) and (ii) issue or transfer, that the Purchaser shall or cause to be entitled to engage a paying agent to effect any payments issued or transferred, to the Sellers under this Agreement(in accordance with their respective Allocation Percentages) the number of Parent Shares payable as the Stock Consideration pursuant to the terms hereof, and which may be represented by book-entry interests or one or more certificates at the Company and the Sellers shall take all actions reasonably required in connection therewithParent's election;
(c) the Company shall deliver to the Purchaser appropriate evidence of releases of any Liens (other than any Permitted Liens) related to the assets and properties of the Company and its Subsidiaries and payoff letters with respect to any Indebtedness set forth on the Indebtedness Payoff Schedule outstanding as of the Closing (in each case in a form reasonably satisfactory to the Purchaser);
(d) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of the Indebtedness listed (as set forth on the Indebtedness Payoff Schedule 1.05(cdelivered by the Sellers Representative or the Company to Purchaser at least three (3) (collectively, the “Funded Indebtedness”), pursuant Business Days prior to the Payoff Letters Closing Date) by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateIndebtedness;
(e) the Purchaser shall deliverrepay, or shall cause to be deliveredrepaid, on behalf of the Sellers, the Company and its Subsidiaries, all amounts necessary to discharge fully the Representative the Representative Expenses then outstanding balance of all Seller Transaction Expenses, by wire transfer of immediately available funds funds, to the account account(s) designated by the Representative each Person to whom such Seller Transaction Expenses are to be paid and delivered in writing not less than by Sellers Representative or the Company to Purchaser at least three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to deliver the applicable payees Indemnity Escrow Amount and the Transaction Expenses that remain unpaid as of the Closing Working Capital Escrow Amount by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than Escrow Agent;
(g) each Seller shall deliver to Purchaser at least three (3) Business Days prior to the Closing Date; provided, that Date such information concerning the Transaction Expenses described in clauses Seller as Purchaser or Parent's registrar and transfer agent may reasonably request at least five (ii5) and (vii) of the definition thereof shall be paid Business Days prior to the Company for processing through its payrollClosing Date in order to issue the Parent Shares to such Seller;
(gh) the Company each of ▇▇▇▇▇▇ ▇▇▇▇, D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall duly execute and deliver to the Purchaser evidence that all Liens Parent, and the Parent shall execute and deliver to such Persons, a Performance Share Unit Agreement substantially in the form of Exhibit D attached hereto, with each Restricted Party receiving the number of performance share units set forth on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the ClosingSchedule 1.04(h); and
(hi) the PurchaserPurchaser and the Sellers Representative or the Company, each Trilogy Party and each Seller as applicable, shall make such other deliveries as are required from such party by Article II hereof.
Appears in 1 contract
Sources: Membership Unit Purchase Agreement (U.S. Silica Holdings, Inc.)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto Parties shall consummate the following transactions transactions:
(a) at the “Closing Transactions”Closing, the Company and the Merger Sub shall cause the Certificate of Merger to be executed and filed with the Secretary of State of the State of Delaware;
(b) on the Closing Date:
(a) each Seller shall (i) deliver to , promptly following the Purchaser all of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the PurchaserEffective Time, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) Parent shall deposit the Purchaser shall deliver, or cause Escrow Amount into the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled Escrow Account in accordance with the Total Equity Value Allocation Certificate by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Escrow Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith;
(c) on the Purchaser Closing Date, promptly following the Effective Time, the Parent shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesGroup Companies, all amounts necessary to discharge fully the then outstanding balance of all Indebtedness listed on Schedule 1.05(c) (collectively, under the “Funded Indebtedness”), pursuant to the Payoff Letters Credit Agreements by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(d) at the Purchaser Closing, the Parent and the Company shall delivermake such other deliveries as are required by ARTICLE VII hereof;
(e) on the Closing Date, promptly following the Effective Time, the Parent shall pay, or shall cause to be deliveredpaid, on behalf of the Company, the Unpaid Transaction Expenses by wire transfer of immediately available funds as directed by the Representative;
(f) on the Closing Date, promptly following the Effective Time, the Parent shall pay an amount equal to the Escrow Agent Representative Reserve Fund to the Escrow Amount Representative by wire transfer of immediately available funds to the an account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall deliver, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payrollRepresentative;
(g) on the Company Closing Date, promptly following the Effective Time, the Parent shall deliver pay the Unitholder Closing Cash Payment to the Purchaser evidence that all Liens on Paying Agent for further distribution by the Company’s assets securing Funded Indebtedness (Paying Agent to the Unitholders in each case, other than Permitted Liens) shall be released upon accordance with the payment of the Funded Indebtedness or otherwise upon the ClosingMerger Consideration Schedule and Section 1.05(a); and
(h) on the PurchaserClosing Date, promptly following the Effective Time, the Parent shall pay the Optionholder Closing Cash Payment to the Company for further distribution by the Company to holders of Vested In-the-Money Options through the Company’s payroll system in accordance with the Merger Consideration Schedule and Section 1.05(b) (in each Trilogy Party and each Seller case, any such payment to be made to any Employee Optionholder, to be reduced by applicable withholdings) (provided, that, notwithstanding the foregoing, if such holder is a Non-Employee Optionholder, then the Parent shall make make, or cause the Paying Agent to make, such other deliveries as are required from payment directly to such party holder via wire transfer to the account(s) designated by Article II hereofsuch holder in such holder’s Option Acknowledgement Agreement (rather than through the Company’s payroll system)).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Cooper Companies, Inc.)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (at the “Closing Transactions”) on the Closing DateClosing:
(a) each Holdco Seller shall deliver to Purchaser:
(i) deliver to the Purchaser all an assignment of membership interest agreement transferring ownership of the certificates (if any) evidencing Transferred Interests to Purchaser from Holdco Seller, in the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by form set forth in Exhibit A attached hereto, duly executed security transfer powers or other form of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and by Holdco Seller;
(ii) either a duly and properly executed certificate of Holdco Seller dated as of the Closing Date, certifying that Holdco Seller is not a “foreign person” for purposes of Section 1445 of the Code, conforming to the requirements of Section 1.1445-2(b)(2) of the Treasury Regulations, or a duly and properly executed IRS Form W-9;
(iii) a certificate, duly executed by an executive officer of Holdco Seller, dated as of the Closing Date, stating that the Closing conditions set forth in Section 2.01(a) (to the case extent related to the representations and warranties in Article IV) and Section 2.01(b) (to the extent related to the covenants of any Holdco Seller who is a Warrantholderand Stockholder) have been satisfied;
(iv) the resolutions of HoldCo Seller’s board of directors approving the Pre-Closing Reorganization and the execution, surrender delivery and performance by Holdco Seller of the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested transactions contemplated by the Transaction Documents (including this Agreement); and
(v) evidence, reasonably satisfactory to Purchaser, of the execution and delivery by such Person consummation of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;the Pre-Closing Reorganization.
(b) the Purchaser The Company shall deliver, deliver or cause to be delivered to Purchaser:
(i) appropriate payoff letters from the Company to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion holders of the Estimated Total Equity Value Indebtedness set forth on Section 1.03(b)(i) of the Disclosure Schedules and shall make arrangements reasonably satisfactory to Purchaser for the holders of such Estimated Indebtedness to deliver all related Lien releases to Purchaser as soon as practicable after the Closing;
(ii) director and officer resignation letters from each director or officer of the Company;
(iii) a certificate executed by the secretary of the Company certifying that attached thereto is a true and complete copy of: (A) the limited liability company agreement of the Company, as in effect on the Closing Date; and (B) the resolutions of the board of directors or the board of managers of the Company, as applicable, duly authorizing the Pre-Closing Reorganization, the execution, delivery and performance by the Company of this Agreement and transactions contemplated hereby, and that such resolutions are in full force and effect as of the Closing Date;
(iv) a certificate, duly executed by an executive officer of the Company, dated as of the Closing Date, stating that the Closing conditions set forth in Section 2.01(a) (to the extent related to the representations and warranties in Article III), Section 2.01(b) (to the extent related to the covenants of the Company) and Section 2.01(c) have been satisfied;
(v) all Books and Records, other than to the extent protected by attorney-client privilege or work product as described in Section 11.15; provided that the Company having physical possession or access to such Books and Records at, or through its employees continuing after the Closing, its headquarters location shall satisfy such delivery obligation;
(vi) evidence satisfactory to Purchaser that the Tail Policies have been purchased by the Company, subject to the payment of the premium as provided in Section 1.03(c)(iii);
(vii) a good standing certificate, issued by the Secretary of State of the State of Delaware, dated as of a recent date prior to the Closing Date and certifying that the Company is in good standing under the Laws of the State of Delaware;
(viii) the certificate of formation of the Company, as in effect on the Closing Date, certified by the Secretary of State of the State of Delaware as of a recent date prior to the Closing Date;
(ix) a bills of sale or other appropriate documents of conveyance conveying, transferring and assigning to Holdco Seller, Stockholder or its or his designees the Excluded Assets;
(x) an assignment and assumption agreement pursuant to which such the Company assigns to Holdco Seller each of the agreements set forth on Section 1.03(b)(ii) of the Disclosure Schedules, duly executed by the Company and Holdco Seller; and
(xi) an amendment to each of the three Real Property Leases, in the forms set forth in Exhibits ▇-▇, ▇-▇ and B-3, duly executed by the Company and Shank’s Properties.
(c) Purchaser shall pay, or Merger Cash Recipient is entitled in accordance with caused to be paid:
(i) to Holdco Seller, the Total Equity Value Allocation Certificate Estimated Purchase Price by wire transfer of immediately available funds to the account(s) account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithHoldco Seller;
(cii) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters payoff letters delivered pursuant to Section 1.03(b)(i), all amounts necessary to discharge fully the then outstanding balance of the Estimated Indebtedness set forth in or determined pursuant to the applicable payoff letter, in each case, by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingEstimated Indebtedness;
(diii) the Purchaser shall deliver, or shall cause to be delivered, premium for the Tail Policies to the Escrow Agent insurer of such policies; and
(iv) the Escrow Amount by wire transfer of immediately available funds Estimated Transaction Expenses to the account designated by the Escrow Agent Persons entitled thereto, in writing not less than three (3) Business Days prior to the Closing Date;
(e) the Purchaser shall delivereach case, or shall cause to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three Holdco Seller.
(3d) Business Days prior Purchaser shall deliver, or cause to be delivered, to Stockholder and Holdco Seller a certificate, duly executed by an executive officer of Purchaser, dated as of the Closing Date; provided, stating that the Transaction Expenses described Closing conditions set forth in clauses (iiSection 2.02(a) and (viiSection 2.02(b) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereofhave been satisfied.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Universal Corp /Va/)
The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (at the “Closing Transactions”) on the Closing DateClosing:
(a) each the Seller shall (i) deliver to the Purchaser all of the certificates (certificates, if any) , evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or Target Shares, accompanied by duly executed security transfer stock powers or other form applicable forms of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or Warrant;
(b) the Purchaser shall deliver, deliver or cause to be delivered to the Company account(s) designated by Seller an amount equal to deliver in the case of the Merger Cash Recipients, to each Seller and each Merger Cash Recipient the aggregate portion of the Estimated Total Equity Value to which such Seller or Merger Closing Cash Recipient is entitled in accordance with the Total Equity Value Allocation Certificate Proceeds, by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithfunds;
(c) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesAcquired Companies, all amounts (if any) necessary to discharge fully the then‑outstanding balance of all Indebtedness listed on Schedule 1.05(c) (collectively, identified in any payoff letter delivered in accordance with the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingCovenants Exception Schedule;
(d) the Purchaser shall deliver, or shall cause to be delivered, deliver the Purchase Price Adjustment Escrow Amount to the Escrow Agent for deposit into an escrow account (the “Purchase Price Adjustment Escrow Account”) and shall deliver the Indemnification Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three for deposit into an escrow account (3the “Indemnification Escrow Account”) Business Days prior with each such account being established pursuant to the Closing Dateterms of the Escrow Agreement;
(e) the Purchaser shall deliverpay, or shall cause on behalf of the Acquired Companies, all Transaction Expenses to be delivered, to the Representative the Representative Expenses by wire transfer of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date;each Person who is owed a portion thereof; and
(f) the Purchaser shall deliverPurchaser, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(g) and the Company shall deliver to the Purchaser evidence that all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the Closing; and
(h) the Purchaser, each Trilogy Party and each Seller shall make such other deliveries as are required from such party by Article II hereofIII.
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The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:
(a) each Seller the Merger Sub shall (i) deliver to the Purchaser all cause a duly executed copy of the certificates (if any) evidencing Certificate of Merger to be filed with the Purchased Securities owned Secretary of State of the State of Delaware and make all other filings or recordings required by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form of assignment and transfer, Delaware Law in blank or to connection with the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantMerger;
(b) the Purchaser shall deliver, deliver or cause to be delivered to the Company Paying Agent an aggregate amount equal to deliver in the case of Members’ Closing Consideration (for distribution by the Merger Cash Recipients, Paying Agent to each Seller and each Merger Cash Recipient the aggregate portion Member of such Member’s Per Unit Portion of the Estimated Total Equity Value to which such Seller or Merger Closing Cash Recipient is entitled Proceeds as determined in accordance with the Total Equity Value Allocation Certificate Section 2.02), by wire transfer of immediately available funds to the account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewithPaying Agent;
(c) the Purchaser shall, as instructed by the Representative, deliver or cause to be delivered to the Company, by wire transfer of immediately available funds to the account(s) designated by the Representative, an aggregate amount equal to the Optionholders’ Closing Consideration (for distribution by the Company to each Optionholder of such holder’s portion of the Estimated Closing Cash Proceeds as determined in accordance with Section 2.04);
(d) the Purchaser shall repay, or cause to be repaid, on behalf of the Company, all amounts necessary to discharge fully the then-outstanding balance of all Indebtedness under the Company and its SubsidiariesRevolving Credit Agreement, the Indebtedness listed on Schedule 1.05(c) Company Term Loan Agreement and the Other Debt Agreements (collectively, the “Funded Indebtedness”if any), pursuant to in each case in the Payoff Letters amount set forth in the applicable Lender Pay-off Letter, by wire transfer of immediately available funds to the account(s) designated by the holders of such Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity FinancingIndebtedness;
(de) the Purchaser shall deliver, or shall cause to be delivered, deliver the Purchase Price Adjustment Escrow Amount to the Escrow Agent for deposit into an escrow account (the “Purchase Price Adjustment Escrow Account”) established pursuant to the terms of the Purchase Price Adjustment Escrow Agreement;
(f) the Purchaser shall deliver the Representative Holdback Amount by wire transfer of immediately available funds to the account account(s) designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing DateRepresentative;
(eg) the Purchaser shall deliverpay, or shall cause on behalf of the Company and its Subsidiaries, all Transaction Expenses to be deliveredeach Person who is owed a portion thereof, in the amount set forth in the Financial Advisor Pay-off Letters with respect to that portion of the Transaction Expenses payable to the Representative Company’s financial advisors;
(h) each Member shall provide the Representative Expenses Purchaser with a properly prepared and executed (i) certificate of non-foreign status, substantially in the form of the applicable sample certification contained in Treasury Regulations Section 1.1445-2(b)(2)(iv), and (ii) IRS Form W-9;
(i) the Purchaser shall, as instructed by the Representative, deliver to the Company the Bonus Amount (for distribution by the Company to each Optionholder or employee who is owed a portion thereof as set forth on the Bonus Amount Schedule) by wire transfer of immediately available funds to the account account(s) designated by the Representative in writing not less than three (3) Business Days prior to the Closing DateRepresentative;
(f) the Purchaser shall deliver, or shall cause to be delivered, to the applicable payees the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payroll;
(gj) the Company or the Representative shall deliver to the Purchaser evidence that all Liens on and the Company’s assets securing Funded Indebtedness (in Paying Agent an executed Letter of Transmittal with respect to each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness or otherwise upon the ClosingMember; and
(hk) the Purchaser, each Trilogy Party the Merger Sub, the Company and each Seller the Representative (on behalf of the Members and Optionholders) shall make such other deliveries as are required from such party by Article II hereofIV. For the avoidance of doubt, and notwithstanding anything contained herein to the contrary, the failure of any Member or Optionholder to satisfy any of the deliveries set forth in Section 2.03 and Section 2.04 shall not affect the Purchaser’s obligations to deliver to any other Member or Optionholder the portion of the Merger Consideration to which such other Member or Optionholder is entitled at Closing.
Appears in 1 contract
Sources: Merger Agreement (Hubbell Inc)
The Closing Transactions. Subject to At the terms and conditions set forth in this AgreementClosing, the parties hereto shall consummate the following transactions (the “Closing Transactions”) on the Closing Date:):
(a) each Seller the Company and Merger Sub shall (i) deliver cause the Articles of Merger to be executed and filed with the Purchaser all Secretary of State of the certificates (if any) evidencing the Purchased Securities owned by such Seller duly endorsed for transfer or accompanied by duly executed security transfer powers or other form Commonwealth of assignment and transfer, in blank or to the relevant redeeming entity or the Purchaser, all as reasonably acceptable to the Purchaser and (ii) in the case of any Seller who is a Warrantholder, surrender the Warrant held by such Seller for cancellation; provided, that in lieu of delivering certificates (if any) evidencing the Purchased Securities and/or such Warrant, such Seller may deliver a lost certificate or lost warrant affidavit representing such certificate or warrant which has been lost, stolen or destroyed and, if reasonably requested by the Purchaser, the execution and delivery by such Person of a customary indemnity agreement to provide indemnity against any claim that may be made against it with respect to such lost certificate or WarrantVirginia;
(b) the Purchaser subject to delivery and receipt of a duly executed Letter of Transmittal as provided in clause (g) below, Buyer shall deliver, or cause the deliver to each holder of Company to deliver in the case Common Stock such holder’s Per Share Portion of the Preliminary Merger Cash RecipientsConsideration, to each Seller and each Merger Cash Recipient the aggregate portion less such holder’s Allocation Percentage of the Estimated Total Equity Value to which such Seller or Merger Cash Recipient is entitled Adjustment Holdback Amount and the Indemnity Holdback Amount, in accordance with the Total Equity Value Allocation Certificate cash by wire transfer of immediately available funds to the account(s) a single account designated by the Representative in writing not less than at least three (3) Business Days prior to the Closing Date; provided, that the Purchaser shall be entitled to engage a paying agent to effect any payments to the Sellers under this Agreement, and the Company and the Sellers shall take all actions reasonably required in connection therewith;
(c) subject to delivery and receipt of a duly executed Letter of Transmittal as provided in clause (g) below, Buyer shall deliver to each Optionholder the Purchaser amount (after applicable withholding Taxes) due to such Optionholder for such Optionholder’s cancelled Options under Section 2.3, less such Optionholder’s Allocation Percentage of the Adjustment Holdback Amount and the Indemnity Holdback Amount, in cash by wire transfer of immediately available funds to a single account designated by the Representative in writing at least three Business Days prior to the Closing Date;
(d) subject to receipt of the payoff letters contemplated by Section 10.1, Buyer shall repay, or cause to be repaid, on behalf of the Company and its SubsidiariesCompany, all amounts necessary to discharge fully the Indebtedness listed on Schedule 1.05(c) (collectively, the “Funded Indebtedness”), pursuant to the Payoff Letters by wire transfer then-outstanding balance of immediately available funds to the account(s) designated by the holders of such all Estimated Closing Indebtedness in the Payoff Letters, the funding for such repayment to be obtained first from the proceeds of Debt Financing and then, as necessary, from the proceeds of the Equity Financing;
(d) the Purchaser shall deliver, or shall cause to be delivered, to the Escrow Agent the Escrow Amount by wire transfer of immediately available funds to the account designated by the Escrow Agent in writing not less than three (3) Business Days prior to the Closing Dateholder of such Indebtedness;
(e) the Purchaser shall deliverBuyer, or shall cause to be delivered, to the Representative and the Representative Expenses by wire transfer Company shall enter into an escrow agreement with the Escrow Agent effective as of immediately available funds to the account designated by the Representative in writing not less than three (3) Business Days prior to the Closing DateDate which shall be substantially in the form attached hereto as Exhibit 3.2(e) (the “Escrow Agreement”);
(f) Buyer shall deliver the Purchaser shall deliver, or shall cause to be delivered, Adjustment Holdback Amount and the Indemnity Holdback Amount to the applicable payees Escrow Agent which shall be held by the Transaction Expenses that remain unpaid as of the Closing by wire transfer of immediately available funds Escrow Agent pursuant to the accounts designated by the payees thereof in writing not less than three (3) Business Days prior to the Closing Date; provided, that the Transaction Expenses described in clauses (ii) and (vii) of the definition thereof shall be paid to the Company for processing through its payrollEscrow Agreement;
(g) the Company shall deliver to Buyer one or more certificates, duly endorsed in blank or accompanied by duly executed stock powers, together with a duly executed Letter of Transmittal substantially in the Purchaser evidence that form of Exhibit 3.2(g)(i) representing all Liens on the Company’s assets securing Funded Indebtedness (in each case, other than Permitted Liens) shall be released upon the payment of the Funded Indebtedness outstanding shares of Company Common Stock as of immediately prior to the Effective Time or otherwise upon affidavits of loss and indemnities as set forth in Section 2.5(c) in form and substance reasonably satisfactory to Buyer, and each Optionholder shall deliver a duly executed Letter of Transmittal substantially in the Closing; andform of Exhibit 3.2(g)(ii) in respect of the options to purchase Company Common Stock held by such holder as of immediately prior to the Effective Time (each such Letter of Transmittal, a “Letter of Transmittal”);
(h) Buyer shall pay, or cause to be paid, on behalf of the PurchaserCompany and the Shareholders, all Estimated Closing Transaction Expenses to each Trilogy Party Person who is owed a portion thereof;
(i) the Company shall deliver to Buyer written letters of resignation, effective as of the Effective Time, of each of the directors and each Seller officers of the Company requested by Buyer prior to the Closing. For the avoidance of doubt, and notwithstanding anything contained herein to the contrary, the failure of any Shareholder to satisfy any of the deliveries set forth in Section 3.2(g) shall make not affect Buyer’s obligation to deliver to any other Shareholder such portion of the Final Merger Consideration (less such Shareholder’s Allocation Percentage of the Adjustment Holdback Amount and the Indemnity Holdback Amount) to which such other Shareholder is entitled at Closing. If any Shareholder fails to satisfy any of the deliveries as are required from set forth in Section 3.2(g), the payment of such party by Article II hereofShareholder’s portion of the Final Merger Consideration (less such Shareholder’s Allocation Percentage of the Adjustment Holdback Amount and the Indemnity Holdback Amount) shall be made after the Closing, promptly after Buyer’s receipt of such Shareholder’s deliveries.
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