Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties: (a) the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer; (b) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto; (c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and (d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount; (e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement; (f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount; (g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b); (h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and (i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Avista Capital Partners GP, LLC), Stock Purchase Agreement (Angiodynamics Inc)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers Purchaser shall deliver to Seller, and Seller shall accept (on behalf of itself or the Buyer certificates representing the SharesDesignated Seller Subsidiary), duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller payment by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) five Business Days prior to the Closing Date), (i) with respect in an amount equal to the Common Shares held by such Seller, the product of (x) the Per Common Share Initial Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller Amount as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing calculated in accordance with Section 2.1(b)1.04(a) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds in USD;
(b) Seller shall deliver (or cause the Designated Seller Subsidiary to such bank account deliver) to Purchaser the Transferred Equity Interests free and clear of all Liens (other than restrictions on transfer arising under applicable securities Laws or those arising from acts of Purchaser or its Affiliates), together with any certificates representing any certificated Transferred Equity Interests and customary instruments of transfer and assignment of the Bank designated Transferred Equity Interests, in writing form and substance reasonably satisfactory to Purchaser, duly executed by Seller or the Designated Seller Subsidiary, as applicable;
(c) Seller shall deliver to Purchaser the certificate required to be delivered pursuant to Section 6.02(c);
(d) Purchaser shall deliver to Seller the certificate required to be delivered pursuant to Section 6.03(c);
(e) Seller shall deliver to Purchaser the Transition Services Agreement, substantially in the form attached hereto as Exhibit A (the “Transition Services Agreement”), duly executed by Seller and the Transferred Company;
(f) Seller shall deliver to Purchaser the Brand Agreement, substantially in the form attached hereto as Exhibit B (the “Brand Agreement”), duly executed by the Bank parties thereto;
(such designation g) Seller shall deliver to Purchaser the Supply Agreement, substantially in the form attached hereto as Exhibit C (the “Supply Agreement”), duly executed by Seller and the Transferred Company;
(h) Seller shall deliver to Purchaser the certificates required to be made delivered pursuant to Section 5.07(f);
(i) Seller shall deliver to Purchaser, to the extent not previously executed and delivered in connection with the Pre-Closing Reorganization, the Real Estate Separation Agreements, duly executed by Seller and any Affiliates of Seller party thereto, including the Transferred Company and any Group Company;
(j) Purchaser shall deliver to Seller, to the extent not previously executed and delivered in connection with the Pre-Closing Reorganization, any Real Estate Separation Agreements to which Purchaser or any of its Affiliates is a party, duly executed by Purchaser or such Affiliates;
(k) Purchaser shall pay any amounts due to directors, employees, consultants and contractors of the Group Companies constituting Estimated Closing Change of Control Payments and shall pay all other Estimated Closing Transaction Expenses for which invoices have been submitted to Purchaser at least two (2) three Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(el) the Buyer Seller shall deliver duly executed pay off letters from each of the Escrow Amountholders of the Indebtedness described on Section 1.03(l) of the Seller Disclosure Letter (the “Funded Indebtedness”), including any shares in a form reasonably satisfactory to Purchaser, certifying that all such Funded Indebtedness owing to such holder shall have been fully paid upon the receipt by such holder of Buyer Common Stockfunds pursuant to Section 1.03(m) hereof, if applicable, together with documentation evidencing to the Escrow Agent reasonable satisfaction of Purchaser the authorization of release of all Liens securing such Funded Indebtedness upon receipt by such holders of funds pursuant to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b1.03(m);
(hm) Purchaser shall pay to the Buyer shall deliver by wire transfer holders of the Funded Indebtedness an amount sufficient to repay all such Funded Indebtedness, with the result that immediately available funds following the Closing there will be no further monetary obligations of any Group Company with respect to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days any Funded Indebtedness outstanding immediately prior to the Closing Date) amounts equalClosing, in the aggregate, to the Seller Transaction Expenseseach case, as specified by set forth in the Company in accordance with Section 2.1(b)applicable pay off letter; and
(in) the Buyer Seller shall deliver by wire transfer to Purchaser executed termination statements or releases for any UCC financing statements covering the Transferred Assets and such other documents or instruments as may be required to demonstrate that, effective as of immediately available funds to one the Closing, the Transferred Assets are released or more bank accounts designated in writing by the Company (such designation to be otherwise made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (free from any and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Liens other than Permitted Liens.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Valvoline Inc), Equity Purchase Agreement (Valvoline Inc)
Transactions to be Effected at the Closing. (a) Seller shall be entitled to receive immediately 8,785,819 of the Purchase Price Shares (the “Initial Purchase Price Shares”); the remaining 1,500,000 of the Purchase Price Shares (the “Escrow Purchase Price Shares”), shall be deposited in escrow pursuant to Section 2.3(d) and shall be held and disposed of in accordance with the terms of the Escrow Agreement.
(b) At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers Buyer shall deliver to the Buyer Seller (i) an original certificate or certificates representing the Initial Purchase Price Shares, (ii) all other documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to this Agreement, and (iii) the Estimated Closing Cash Amount, to be paid by wire transfer of immediately available funds to an account designated in writing by Seller.
(c) At the Closing, Buyer, Seller and ▇▇▇▇▇▇ Jan ▇▇▇▇▇ Lijdsman, civil law notary in Amsterdam, the Netherlands (the “Escrow Agent”) shall execute and deliver the Escrow Agreement in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”).
(d) At the Closing, Seller shall deliver to Buyer (or if Buyer so elects, to a Subsidiary of Buyer) (i) certificates for the Acquired Shares duly endorsed in blank or accompanied by stock powers duly endorsed in blank (or if the Acquired Shares are not certificated, (ii) a duly executed instrument of assignment thereof in proper form for transfer;
under the laws of Luxembourg, (biii) a certified copy of the share register of the Acquired Company), with any required transfer stamps affixed thereto, (iv) all other documents and instruments necessary to vest in Buyer shall pay (or its Subsidiary) all of Seller’s right, title and interest in and to each Seller by wire transfer the Acquired Shares, free and clear of immediately available funds to a bank account designated in writing by each such Seller all Liens, and (such designation v) all other documents, instruments or certificates required to be made delivered by Seller at least two (2) Business Days or prior to the Closing Date), (i) with respect pursuant to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;this Agreement.
(e) At the Closing, Buyer and Seller shall deliver also close on the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as transactions specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Subscription Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (La Cortez Energy, Inc.), Stock Purchase Agreement (Avante Petroleum S.A.)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers Purchaser shall deliver or cause to the Buyer certificates representing the Sharesbe delivered to Sellers, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller payment by wire transfer of immediately available funds to a bank account accounts designated in writing by each such Seller (such designation to be made Sellers at least two (2) Business Days prior to the Closing Date, an aggregate amount equal to the Initial Closing Date Amount (with such aggregate amount to be split between such bank accounts as may be designated in writing by Sellers);
(b) Sellers shall deliver to Purchaser any certificates representing any certificated Transferred Equity Interests and customary instruments of transfer and assignment of the Transferred Equity Interests, in form and substance reasonably satisfactory to Purchaser, duly executed by Sellers, as applicable;
(c) Sellers shall deliver to Purchaser the certificate required to be delivered pursuant to Section 7.2(c);
(d) Purchaser shall deliver to Sellers the certificate required to be delivered pursuant to Section 7.3(c);
(e) Except as set forth on Section 2.4(e) of the Seller Disclosure Letter, Sellers shall deliver to Purchaser evidence reasonably satisfactory to Purchaser of the release and termination effective as of the Closing of (i) any Liens (other than Permitted Liens) with respect to the Common Shares held by such SellerAcquired Subsidiaries, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) any Liens (other than those arising under applicable securities Laws) with respect to the Preferred Shares held by such SellerTransferred Equity Interests and (iii) any and all Indebtedness for borrowed money of, the product or guarantees of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stockindebtedness for borrowed money provided by, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made Acquired Subsidiaries other than in the form case of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to clause (iii) Indebtedness under Embarq Corporation’s 7.995% Notes due 2036 issued under the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow AgreementEmbarq Indenture;
(f) the Buyer Sellers shall deliver by wire transfer of immediately available funds to Purchaser, and Purchaser shall deliver to Sellers, the bank account designated Transition Services Agreement in writing by the Sellers’ Representative form attached as Exhibit A (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount“Transition Services Agreement”);
(g) the Buyer Sellers shall deliver by wire transfer of immediately available funds to Purchaser, and Purchaser shall deliver to Sellers, the bank account designated Network Services Agreement substantially in writing by Avista Capital Partners, LP the form attached as Exhibit C (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b“Network Services Agreement”);
(h) the Buyer Sellers shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by Purchaser, and Purchaser shall deliver to Sellers, the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, Master Services Agreement substantially in the aggregateform attached as Exhibit D (the “Master Services Agreement”);
(i) Sellers shall deliver to Purchaser, and Purchaser shall deliver to Sellers, the Colocation Agreement substantially in the form attached as Exhibit E (the “Colocation Agreement”);
(j) Each Seller Transaction Expenses, as specified by the Company in accordance shall deliver to Purchaser a completed and executed IRS Form W-9 with Section 2.1(b)respect to such Seller; and
(ik) the Buyer Sellers shall deliver to Purchaser, and Purchaser shall deliver to Sellers, such additional Transaction Agreements as contemplated by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)this Agreement.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Lumen Technologies, Inc.)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer will:
(ai) pay to the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller by wire transfer of immediately available funds in U.S. Dollars to a bank such account designated in writing or accounts specified by each such Seller (such designation the Sellers to be made at least two (2) Business Days the Buyer prior to the Closing Date), Closing) an aggregate amount equal to (i) with respect to the Common Shares held by such Seller, the product of (xA) the Per Common Share Closing Date Cash Consideration, if any, multiplied by Purchase Price minus (yB) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and Aggregate VCS Payment Amount;
(ii) with respect pay to the Preferred Shares held by such Seller, the product of Company (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds in U.S. Dollars to such bank account of the Bank designated in writing or accounts specified by the Bank (such designation Sellers to be made at least two (2) Business Days the Buyer prior to the Closing DateClosing) an amount equal to the Credit Agreement Outstanding Payoff Aggregate VCS Payment Amount;; and
(eiii) deliver to the Sellers all other documents, instruments or certificates required to be delivered by the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days or prior to the Closing Date) the Sellers’ Representative Expenses Amount;pursuant to Section 7.2 of this Agreement.
(gb) At the Buyer shall Closing, each Seller will deliver by wire transfer of immediately available funds to the bank account designated Buyer:
(i) all such Seller’s right, title and interest in writing by Avista Capital Partnersand to the percentage of outstanding Company Interests set forth opposite such Seller’s name on Schedule A under the heading “Company Interests” free and clear of all Liens (other than Liens (x) arising pursuant to, LP or as a result of the transactions contemplated by, or described in, this Agreement, (such designation y) arising pursuant to applicable securities Laws and (z) for Taxes not yet due or delinquent or being contested in good faith) pursuant to an Instrument of Assignment; and
(ii) all documents, instruments or certificates required to be made delivered by such Seller at least two (2) Business Days or prior to the Closing Datepursuant to Section 7.1 this Agreement.
(c) Immediately prior to the Closing, all unvested or not fully vested Value Creation Share Awards then outstanding shall become fully vested. Seller shall cause each Value Creation Share Award outstanding at the Closing to be satisfied and cancelled by the Company’s payment to each holder of any Value Creation Share Award at the Closing in an amount in cash equal to the Management Fee, as specified amount due to such holder under the Value Creation Shares Plan arising from or otherwise triggered by the transactions contemplated by this Agreement (less any applicable withholding Taxes). The payments to be made by the Company in accordance with pursuant to this Section 2.1(b);
(h2.3(c) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to concurrently with the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Closing.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers Seller shall deliver or cause to the Buyer be delivered (i) to Purchaser or, if requested by Purchaser, one or more Purchaser Subs, a certificate or certificates representing the SharesTransferred Equity Interests, duly endorsed by Seller for transfer to Purchaser or the applicable Purchaser Subs, as applicable, in blank each case with any required stock transfer stamps affixed thereto, free and clear of all Liens (other than Liens created by Purchaser), and (ii) to Purchaser (A) duly executed deeds (in recordable form) for each Owned Real Property, together with owner’s affidavits and customary gap indemnities executed and delivered by Seller or accompanied the other applicable member of the Seller Group in favor of the Title Company in such form as may be reasonably required by stock powers the Title Company to delete from Purchaser’s title insurance policies such general exceptions to title as are customarily omitted on the basis of an owner’s affidavit and customary gap indemnity, and bills of sale, assignments and other instruments of transfer relating to the other Transferred Assets (other than the assets of the Transferred Entity), in each case transferring such Transferred Asset to Purchaser free and clear of any Liens (other than Permitted Liens and Liens created by Purchaser), (B) counterparts of the Intellectual Property License Agreement, the Site Services Agreements, the Transition Services Agreement, the Fiber Supply Agreements and each of the IDB Lease Assignment and Assumption Agreements duly endorsed executed by Seller or the relevant member of the Seller Group, (C) a complete and correct copy (recorded on a DVD or similar medium) of the electronic data room created and maintained by or on behalf of Seller in blank connection with the contemplated sale of the Business and (D) all such other certificates and documents required to be delivered to Purchaser at or prior to the Closing pursuant to this Agreement or any Ancillary Agreement (the documents in proper form clauses (i), (ii)(A) and (ii)(D) above, collectively, the “Asset Conveyance Documents”) (it being understood that the certificates, deeds, bills of sale, assignments, instruments of transfer, agreements and other documents referred to in clauses (i), (ii)(A) and (ii)(D) above shall not require Seller to make any additional representations, warranties or covenants, expressed or implied, not contained in this Agreement or the Ancillary Agreements; provided, however, that the deeds for transfer;the Owned Real Property shall be bargain and sale deeds with covenants against grantor’s acts (also known as “special warranty” deeds) or the equivalent in the jurisdiction where the Owned Real Property is located); and
(b) the Buyer Purchaser shall pay deliver to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Sellerpayment, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company Seller (such designation to be made at least two (2) five Business Days prior to the Closing Date) amounts equal), in an amount equal to (A) the aggregatePurchase Price, to the Seller Transaction Expensesplus or minus, as specified applicable, (B) estimates, prepared by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds Seller and delivered to one or more bank accounts designated in writing by the Company (such designation to be made Purchaser at least two (2) five Business Days prior to the Closing Date) amounts equal, in the aggregate, of each adjustment to the Transaction Bonuses Purchase Price under Section 2.03 (the amount of the Purchase Price plus or minus, as the case may be, such estimates of adjustments under Section 2.03 being hereinafter called the “Closing Date Payment”), (ii) duly executed counterparts of the Asset Conveyance Documents, and duly executed assumption agreements and other instruments of assumption providing for the assumption of the Assumed Liabilities (other than the Liabilities of the Transferred Entity), (iii) counterparts of the Intellectual Property License Agreement, the Site Services Agreements, the Transition Services Agreement, the Fiber Supply Agreements and each of the IDB Lease Assignment and Assumption Agreements duly executed by Purchaser and (iv) all such other certificates and documents required to be delivered to Seller at or prior to the Closing pursuant to this Agreement or any Ancillary Agreement (the documents in clauses (ii) and (iv), collectively, the “Liabilities Assumption Documents”) (it being understood that the deeds, bills of sale, assignments, instruments of transfer and other documents referred to in clauses (ii) and (iv) above shall not require Purchaser to make any additional representations, warranties or covenants, expressed or implied, not contained in this Agreement or the Ancillary Agreements). Seller shall prepare the estimates contemplated by clause (i)(B) of this Section 2.02(b) in good faith based upon available information and shall provide Purchaser with reasonable supporting documentation for the calculation of such estimates and reasonable access to the personnel of Seller and the Company other members of the Seller Group responsible for preparing such estimates. Seller shall timely remit all applicable withholding obligations consider in good faith any proposed revisions to such estimates asserted by Purchaser prior to the Closing. No position taken by Purchaser or Seller prior to the Closing with respect to such Transaction Bonuses estimates nor any failure of Purchaser to object to such estimates shall prejudice the rights of the parties with respect to the proper third parties post-Closing adjustments provided in accordance with all applicable Laws)Section 2.03 or delay or postpone the Closing Date.
Appears in 2 contracts
Sources: Purchase Agreement (International Paper Co /New/), Purchase Agreement (Weyerhaeuser Co)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) deliver to Seller:
(A) the Sellers shall Closing Date Payment by wire transfer of immediately available funds to an account designated in writing by Seller to Buyer no later than five Business Days prior to the Closing Date; and
(B) the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Section 7.03 of this Agreement.
(ii) pay, on behalf of the Acquired Companies or Seller, the following amounts:
(A) Indebtedness of the Acquired Companies to be paid at Closing, by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Indebtedness Certificate;
(B) any Transaction Expenses unpaid at Closing, by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Transaction Expenses Certificate; and
(C) Seller’s Fees.
(iii) deliver to the Buyer Escrow Agent:
(A) the Purchase Price Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon, if any, and less any disbursements therefrom in accordance with the Escrow Agreement, the “Purchase Price Adjustment Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held for the purpose of securing the obligations of Seller in Section 2.04(d);
(B) the Indemnification Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Indemnification Escrow Fund”) for the purpose of securing the indemnification obligations of Seller set forth in ARTICLE VIII and the obligations of Seller in Section 2.04(d) and Section 6.09 and;
(C) the Escrow Agreement.
(b) At the Closing, Seller shall:
(i) deliver to Buyer:
(A) stock certificates representing evidencing the Shares, free and clear of all Encumbrances, other than those imposed by applicable securities laws, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly endorsed executed in blank in proper form for transfer;blank, with all required stock transfer tax stamps affixed thereto; and
(bB) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation Ancillary Documents and all other agreements, documents, instruments or certificates required to be made delivered by Seller or the Company at least two (2) Business Days or prior to the Closing Date), (i) with respect pursuant to the Common Shares held by such Seller, the product Section 7.02 of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and this Agreement.
(ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Agent.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Air Industries Group), Stock Purchase Agreement (Cpi Aerostructures Inc)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers Purchaser shall deliver to the Buyer Sellers:
(i) By wire transfer of immediately available funds to each individual Seller account as set forth on the Flow of Funds Memorandum, an amount equal in accordance with the Agreed Allocations of the Initial Cash Payment as defined in Section 2.04(a). In the event that Sellers do not timely deliver a Flow of Funds Memorandum to Purchaser, Purchaser may pay the amounts in the foregoing sentence to each Seller by check in accordance with the Agreed Allocations.
(ii) Within three Business Days of the Closing, the Purchaser shall transfer the Purchaser Preferred Stock in the Initial Stock Payment as directed by the Sellers, in book-entry form.
(iii) The Escrow Agreement, duly executed by the Purchaser, the Company and the escrow agent.
(iv) The Transition Agreement, duly executed by the Purchaser and the Company.
(v) The Hosting Agreement, duly executed by the Purchaser and the Company. The Partnership Agreement, duly executed by the Purchaser and the Company.
(vi) All other agreements, documents, instruments or certificates representing as the Sellers and the Company reasonably request that are necessary or desirable to consummate the transactions contemplated by this Agreement.
(b) On or before the Closing Date, the Company shall pay the following amounts:
(i) Closing Indebtedness of the Company to be paid at or prior to Closing; and
(ii) any Seller Transaction Expenses unpaid at Closing.
(c) At the Closing, the Sellers shall deliver, or cause to be delivered, to the Purchaser:
(i) Stock certificates evidencing the Shares, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly endorsed executed in blank in proper form for transfer;blank, with all required stock transfer tax stamps affixed thereto.
(bii) A list of Payoff Amounts for all Indebtedness of the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date)Company, (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as including all Indebtedness listed on Schedule 4.5(a2.06(c)(ii), and all Seller Transaction Expenses (the “Payoff Certificate”), together (A) attached hereto (as with appropriate termination statements under the same may be updated prior to the Closing in accordance with Section 2.1(b)) applicable Uniform Commercial Code or comparable Laws or Payoff Letters, and (iiB) with respect to the Preferred Shares held by invoices or other documentation evidencing required Payoff Amounts and payees of such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified in each case in form and substance reasonably satisfactory to the Purchaser, if applicable.
(iii) The release of all guarantees made by the Company on behalf of any other Person, in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated each case in writing by the Company (such designation to be made at least two (2) Business Days prior form and substance reasonably satisfactory to the Closing Date) amounts equalPurchaser, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)if applicable.
Appears in 1 contract
Sources: Stock Purchase Agreement (Bridgeline Digital, Inc.)
Transactions to be Effected at the Closing. At On the terms and subject to the conditions set forth in this Agreement, the Parties shall consummate the following closing transactions at the Closing, the following transactions shall be effected by the parties:
(a) the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number Pro Rata Share of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver Payment by wire transfer of immediately available funds to the bank account designated by such Seller in writing by the Sellers’ Representative (such designation to be made at least Buyer no later than two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(gii) the Buyer shall deliver to the Escrow Agent, an amount equal to the Escrow Amount by wire transfer of immediately available funds to the bank account designated by Escrow Agent in writing to Buyer;
(iii) Buyer shall deliver to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, employment agreements in the form attached hereto as Exhibit B-1, Exhibit B-2 and Exhibit B-3, respectively (collectively the “Employment Agreements”), setting forth the terms of employment being offered;
(iv) Seller Representative and the Company shall enter into and deliver the lease in the form attached hereto as Exhibit C (the “Lease”), setting forth the terms under which the Company will lease the Business Facility;
(v) Each Seller shall deliver an assignment of the Membership Interests to Buyer in the form attached hereto as Exhibit D (the “Assignment”), duly executed by Avista Capital Partnerssuch Seller;
(vi) The entire Indebtedness Amount (including Indebtedness listed on Section 3.09(a)(vii) of the Disclosure Schedules) shall be repaid in full and releases of all Encumbrances (other than Permitted Encumbrances) on all assets related to such Indebtedness, LP in form and substance reasonably satisfactory to Buyer, obtained;
(such designation vii) All Company Cash shall be distributed to Sellers in compliance with the Operating Agreement of the Company;
(viii) Sellers and the Seller Representative shall deliver to Buyer, the other Transaction Documents and all other agreements, documents, instruments or certificates required to be made delivered by Sellers and the Seller Representative at least two (2) Business Days or prior to the Closing Date) an amount equal pursuant to the Management Fee, as specified by the Company in accordance with Section 2.1(b);6.01 of this Agreement; and
(hix) the Buyer shall deliver by wire transfer of immediately available funds to one Sellers and the Seller Representative, the other Transaction Documents and all other agreements, documents, instruments or more bank accounts designated in writing by the Company (such designation certificates required to be made delivered by Buyer at least two (2) Business Days or prior to the Closing Datepursuant to Section 6.02 of this Agreement.
(x) amounts equalEach of the Persons listed on Section 2.05 of the Disclosure Schedules shall have resigned from the position(s) with the Company set forth next to his or her name, in effective immediately upon Closing and the aggregate, originals of their respective resignation letters are provided to the Seller Transaction Expenses, as specified by Purchaser at the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Closing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Digirad Corp)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) deliver to Sellers or Seller Representative (as applicable):
(A) the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller Closing Date Payment by wire transfer of immediately available funds to a bank account one or more accounts designated in writing by each such Seller (such designation Representative to be made at least Buyer no later than two (2) Business Days prior to the Closing Date), ; and
(i) with respect to the Common Shares held by such Seller, the product of (xB) the Per Common Share Closing Date Cash ConsiderationAncillary Documents and all other agreements, if anydocuments, multiplied instruments or certificates required to be delivered by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated Buyer at or prior to the Closing in accordance with pursuant to Section 2.1(b)) and 9.03 of this Agreement.
(ii) with respect pay, on behalf of the Company or Sellers, the following amounts:
(A) Indebtedness of the Company to be paid at Closing, by wire transfer of immediately available funds, to the Preferred Shares held by such Seller, accounts and in the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding amounts specified on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;Indebtedness Certificate; and
(cB) the Buyer shall deliver to each Seller a number all Transaction Expenses, by wire transfer of shares of Buyer Common Stockimmediately available funds, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) accounts and in the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding amounts specified on the Closing Date owned by such Seller as listed on Schedule 4.5(aTransaction Expenses Certificate.
(iii) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered deliver to the Escrow Agent the Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the last sentence of Escrow Agreement, the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d"Escrow Fund") the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account accounts designated by the Escrow Agent, to be held for the purpose of securing the indemnification obligations of Sellers set forth in ARTICLE X and the obligations of Sellers in Section 8.08.
(b) At the Closing, Sellers shall deliver to Buyer:
(i) an Assignment of Membership Interests (each, an "Interest Assignment"), transferring the Interests of the Bank designated in writing Seller Party, free and clear of all Encumbrances, duly executed by such Seller; and
(ii) fully executed originals of this Agreement and each of the Bank (such designation Ancillary Documents to which the Seller Party is a party, and all other agreements, documents, instruments or certificates required to be made executed and/or delivered by such Seller Party at least two (2) Business Days or prior to the Closing Date) an amount equal pursuant to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares Section 9.02 of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow this Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Gse Systems Inc)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers Seller shall deliver or cause to be delivered to Purchaser (i) such duly executed deeds, bills of sale, assignments and other instruments of transfer relating to the Buyer Transferred Assets (other than the Transferred Intellectual Property) in forms reasonably acceptable to Purchaser, (ii) duly executed assignments of the Transferred Trademarks, in forms suitable for recording in the applicable jurisdictions (it being understood that any notarization and/or legalization required for the recording of any such assignment outside of the United States may be effectuated after the Closing and shall be the sole responsibility of Purchaser) in forms reasonably acceptable to Purchaser, (iii) general assignments of all Other Transferred Intellectual Property in forms reasonably acceptable to Purchaser, (iv) a duly executed counterpart of the Transitional Services Agreement, (v) a duly executed counterpart of the Excluded Technology License (it being understood that such deeds, bills of sale, assignments and other instruments of transfer shall not require Seller to make any additional representations, warranties or covenants, expressed or implied, not contained in this Agreement) and (vi) the officer’s certificates representing the Shares, duly endorsed referred to in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;Section 6.02; and
(b) Purchaser shall deliver to Seller and the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), Affiliates (i) with respect to the Common Shares held by such Sellerpayment, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company Seller (such designation to be made at least two (2) Business Days business day prior to the Closing Date) amounts equal), in the aggregate, an amount equal to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(iA) the Buyer shall deliver Purchase Price plus or minus (B) an estimate, prepared by wire transfer of immediately available funds Seller and delivered to one or more bank accounts designated in writing by the Company (such designation to be made Purchaser at least two (2) Business Days business day prior to the Closing Date) amounts equal, in the aggregate, of any adjustment to the Transaction Bonuses Purchase Price under Section 2.03 (and the Company shall timely remit all applicable withholding obligations with respect Purchase Price plus or minus such estimate of any adjustment under Section 2.03 being hereinafter called the “Closing Date Payment”), (ii) duly executed counterparts to such Transaction Bonuses deeds, bills of sale, assignments and other instruments of transfer, and appropriately executed assumption agreements and other instruments of assumption providing for the assumption of the Assumed Liabilities, (iii) an duly executed counterpart to the proper third parties Transitional Services Agreement, (iv) a duly executed counterpart of the Excluded Technology License and (v) the officer’s certificates referred to in accordance with all applicable Laws)Section 6.03.
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) deliver to Seller (for the benefit of Seller and ExchangeCo):
(A) the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller Closing Date Payment by wire transfer of immediately available funds to a bank an account designated in writing by each such Seller (such designation to be made at least two (2) Buyer no later than three Business Days prior to the Closing Date), ; and
(i) with respect to the Common Shares held by such Seller, the product of (xB) the Per Common Share Closing Date Cash ConsiderationAncillary Documents and all other agreements, if anydocuments, multiplied instruments or certificates required to be delivered by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated Buyer at or prior to the Closing in accordance with pursuant to Section 2.1(b)) and 7.03 of this Agreement. Purchase Agreement 16 Project Acorn
(ii) with respect to pay, on behalf of the Preferred Shares held by such SellerCompany Group, Seller or ExchangeCo, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;following amounts:
(cA) the Buyer shall deliver to each Seller a number Indebtedness of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder Company Group member to be made in the form of shares of Buyer Common Stock shall be made only in whole sharespaid at Closing, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated accounts and in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to amounts specified on the Closing Date) the Sellers’ Representative Expenses Amount;Indebtedness Certificate; and
(gB) the Buyer shall deliver any Transaction Expenses unpaid at Closing, by wire transfer of immediately available funds to the bank account designated accounts and in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the amounts specified on the Closing DateTransaction Expenses Certificate.
(b) At the Closing, Seller and ExchangeCo shall deliver to Buyer:
(A) an amount equal assignment of the Membership Interests to Buyer (or a Subsidiary of Buyer designated by Buyer) in form and substance satisfactory to Buyer, duly executed by Seller, and (B) certificates representing the Management FeeShares, as specified free and clear of all Encumbrances (other than Encumbrances pursuant to securities Laws of general application), duly endorsed in blank by ExchangeCo or accompanied by instruments of transfer duly endorsed in blank by ExchangeCo, with all required transfer tax stamps (if any) affixed thereto (collectively, the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b“Assignments”); and
(iii) the Buyer shall deliver by wire transfer of immediately available funds to one Ancillary Documents and all other agreements, documents, instruments or more bank accounts designated in writing by the Company (such designation certificates required to be made delivered by Seller or ExchangeCo at least two (2) Business Days or prior to the Closing Date) amounts equal, in the aggregate, pursuant to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Section 7.02 of this Agreement.
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions Buyer shall be effected by the partiesdeliver:
(ai) to Sellers’ Representative, the Closing Cash Consideration by wire transfer of immediately available funds to an account or accounts that shall be designated in writing by Sellers’ Representative to Buyer no later than two Business Days prior to the Closing Date for further payment by Sellers’ Representative to Sellers in accordance with Sellers’ applicable Selling Percentages (or such other manner as agreed to by Sellers); and
(ii) to the applicable lenders or creditors, the Outstanding Debt;
(iii) to the applicable third-party payees, the Transaction Costs;
(iv) to Sellers’ Representative, the Common Stock Consideration for further distribution by Sellers’ Representative to Sellers in accordance with Sellers’ applicable Selling Percentages (or such other manner as agreed to by Sellers); provided that, with respect to each distribution of shares of Sterling Common Stock comprising the Common Stock Consideration to the individual Sellers, the number of shares of Sterling Common Stock deliverable to the individual Sellers shall be rounded up or down, as shall be determined by Sellers’ Representative, to the nearest whole number to eliminate fractional shares and so that the aggregate number of shares comprising the Common Stock Consideration are delivered to Sellers as a whole;
(v) the Sellers Transaction Documents and all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Section 8.03.
(b) At the Closing, each Seller shall deliver to Buyer:
(i) stock certificates evidencing the Buyer certificates representing the SharesShares held by such Seller, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly endorsed executed in blank in proper form for transfer;blank, with all required stock transfer tax stamps affixed thereto; and
(bii) the Buyer shall pay Transaction Documents and all other agreements, documents, instruments or certificates required to each Seller be delivered by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days or prior to the Closing Date), (i) with respect pursuant to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)8.02.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sterling Construction Co Inc)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall Buyer will (i) pay to the Stockholders the Aggregate Share Payment by paying to each Stockholder by transfer of immediately available funds in accordance with the instructions set forth for such Stockholder on Schedule A the amount set forth opposite such Stockholder’s name on Schedule A under the heading “Share Payment” (as such amount may be effected adjusted in accordance with Section 2.1(b)) minus the Per Share Cash Deficit Adjustment (if any) applicable to such payment as provided in Section 2.1(a), and (ii) deliver to the Stockholders all other documents, instruments or certificates required to be delivered by the parties:Buyer at or prior to the Closing pursuant to this Agreement.
(ab) At the Closing, the Buyer will (i) pay to the Optionholders the Aggregate Option Payment by paying to each Optionholder by transfer of immediately available funds in accordance with the instructions set forth for such Optionholder on Schedule B the amount set forth opposite such Optionholder’s name on Schedule B under the heading “Option Payment” (as such amount may be adjusted in accordance with Section 2.2(e)) minus the Per Share Cash Deficit Adjustment (if any) applicable to such payment as provided in Section 2.2(b), and (ii) deliver to each Optionholder all other documents, instruments or certificates required to be delivered by the Buyer at or prior to the Closing pursuant to this Agreement.
(c) At the Closing, (i) the Sellers shall Stockholders will deliver to the Buyer a certificate or certificates representing the Shares, Sale Shares duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
and (bii) the Sellers will deliver to the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation all other documents, instruments or certificates required to be made delivered by the Sellers at least two (2) Business Days or prior to the Closing Date), (i) with respect pursuant to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow this Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Sources: Stock Purchase Agreement (Security Capital Corp/De/)
Transactions to be Effected at the Closing. At At, and as a condition to the occurrence of, the Closing, the following transactions shall be effected by the partieseffected:
(a) the Sellers The Buyers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation cause to be made at least two (2) Business Days prior to the Closing Date), delivered:
(i) with respect to the Common Shares held by such Seller, the product of Seller Parent (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence behalf of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(dSellers) the Buyer shall deliver to the Bank or its designee by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank Seller Parties (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal sufficient to pay the Credit Agreement Outstanding Payoff AmountSellers’ Expenses;
(eii) to the Buyer shall deliver Escrow Agent, for deposit into two separate escrow accounts, the Indemnity Escrow Amount and the Adjustment Escrow Amount, including any shares of Buyer Common Stock, if applicablerespectively, to be held by the Escrow Agent to be held in separate escrow accounts (the “Indemnity Escrow Account” and disbursed the “Adjustment Escrow Account”, respectively) and distributed by the Escrow Agent in accordance with the terms of the Escrow Agreement and the applicable provisions of this Agreement;
(fiii) to the Buyer shall deliver Seller Parties by wire transfer of immediately available funds to the such bank account or bank accounts designated in writing by the Sellers’ Representative Seller Parties (such designation to be made at least two (2) Business Days prior to the Closing Date), an amount equal to the Estimated Purchase Price;
(iv) to the Sellers an executed copy of the Transition Services Agreement, executed by the Buyers;
(v) to the Sellers an executed copy of the Antioch Sublease Agreement, executed by US Buyer;
(vi) to the Sellers an executed copy of the Shorewood Sublease Agreement, executed by US Buyer;
(vii) to the Sellers an executed copy of the ▇▇▇▇ of Sale; Assignment and Assumption Agreement, executed by US Buyer;
(viii) to the Sellers an executed copy of the Escrow Agreement, executed by US Buyer;
(ix) to the Sellers the R&W Insurance Policy, duly issued and bound by the R&W Insurer;
(x) to the Sellers the India Share Transfer Agreement, executed by Paper Magic (and Paper Magic shall fulfill its obligations set forth in Clause 3 (Closing) of the India Share Transfer Agreement);
(xi) executed copies of the Employment Agreements, executed by the applicable Buyer; and
(xii) executed copies of each other Transaction Document to which a Buyer is a party, executed by the applicable Buyer.
(b) The Seller Parties, as applicable, shall:
(i) pay or cause to be paid from the amount received from the Buyers pursuant to Section 2.2(a) the Sellers’ Representative Expenses AmountExpenses;
(gii) the Buyer shall deliver by wire transfer of immediately available funds or cause to be delivered to the bank account designated Buyers certificates or similar instruments, as applicable, representing all of the Foreign Securities owned by the Equity Sellers, together with appropriate evidence of, and other documentation reasonably necessary in connection with, such transfer;
(iii) deliver or cause to be delivered to the Buyers such resignations of members of the Board of Directors (or equivalent thereof) of the governing bodies of the Foreign Subsidiaries which have been requested in writing by Avista Capital Partners, LP (such designation to be made the Buyers at least two five (25) Business Days days prior to the Closing Date, such resignations to be effective concurrently with the Closing;
(iv) an amount equal deliver or cause to be delivered to the Management FeeBuyers an executed copy of the Transition Services Agreement, as specified executed by Wilton Brands;
(v) deliver or cause to be delivered to the Company in accordance with Section 2.1(bBuyers executed copies of the Employment Agreements, executed by each of the individuals set forth on Seller Disclosure Schedule 2.2(b)(v);
(hvi) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation caused to be made at least two (2) Business Days prior delivered to the Closing DateBuyers an executed copy of the Antioch Sublease Agreement, executed by ▇▇ ▇▇▇▇▇▇;
(vii) amounts equaldeliver or caused to be delivered to the Buyers an executed copy of the Shorewood Sublease Agreement, executed by Wilton Industries;
(viii) deliver or caused to be delivered to the Buyers an executed copy of ▇▇▇▇ of Sale; Assignment and Assumption Agreement, executed by each Seller and Seller Parent;
(ix) deliver or caused to be delivered to the Buyers an executed copy of the Escrow Agreement, executed by Seller Parent;
(x) deliver or cause to be delivered to the Buyers executed copies of all documentation necessary for the assignment of the Purchased Assets, including short-form intellectual property assignment agreements substantially in the aggregateform of Exhibit H hereto (“IP Assignment Agreements”), and all documentation necessary for the assignment of the Leased Real Property lease agreements that are Purchased Assets;
(xi) deliver or cause to be delivered to the Seller Transaction ExpensesBuyers the D&O Run-Off Policy;
(xii) deliver or cause to be delivered to the Buyers the India Share Transfer Agreement, as specified executed by Simplicity Creative and India Trimmings (and Simplicity Creative shall, and shall cause each of India Trimmings and British Trimmings to, fulfill their respective obligations set out in Clause 3 (Closing) of the Company in accordance with India Share Transfer Agreement);
(xiii) deliver or cause to be delivered to the Buyers the FIRPTA certificate(s) required pursuant to Section 2.1(b7.7(l); and
(ixiv) deliver or cause to be delivered to the Buyer shall deliver by wire transfer of immediately available funds Buyers the other Transaction Documents to one which a Seller Party or more bank accounts designated in writing Affiliate thereof is a party, executed by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Seller Party or Affiliate thereof.
Appears in 1 contract
Sources: Asset and Securities Purchase Agreement (CSS Industries Inc)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer will:
(ai) pay to Oak by wire transfer of immediately available funds in accordance with the Sellers shall instructions set forth under the heading “Payment Instructions” opposite Oak’s name on the Seller Spreadsheet an amount equal to the Oak Closing Date Consideration;
(ii) pay to each Class A Common Unit Holder by wire transfer of immediately available funds in accordance with the instructions set forth under the heading “Payment Instructions” opposite such Class A Common Unit Holder’s name on the Seller Spreadsheet an amount equal to such Class A Common Unit Holder’s Closing Date Consideration;
(iii) pay to each Class B Common Unit Holder by wire transfer of immediately available funds in accordance with the instructions set forth under the heading “Payment Instructions” opposite such Class B Common Unit Holder’s name on the Seller Spreadsheet an amount equal to such Class B Common Unit Holder’s Closing Date Consideration;
(iv) pay, or cause the Company to pay, in accordance with the written instructions provided by the Company, by wire transfer of immediately available funds, the Indebtedness of the Acquired Companies as of the Closing Date as specified in the Statement of Indebtedness and Transaction Expenses delivered to the Buyer prior to Closing pursuant to Section 2.2(b)(i)B;
(v) pay, or cause the Company to pay, in accordance with the written instructions provided by the Company, by wire transfer of immediately available funds, those Sellers’ Transaction Expenses specified in the Statement of Indebtedness and Transaction Expenses delivered to the Buyer prior to Closing pursuant to Section 2.2(b)(i)B;
(vi) deliver to Oak the Oak Indemnity Escrow Agreement, duly executed by the Buyer;
(vii) deliver to the Representative the Non-Oak Sellers Indemnity Escrow Agreement, duly executed by the Buyer;
(viii) deposit, or cause the Company to deposit, the Oak Indemnity Escrow Amount and the Non-Oak Sellers Indemnity Escrow Amount with the Escrow Agent;
(ix) deliver to the Sellers an executed copy of the Closing Operating Agreement Amendment (showing Oak Blocker and the Buyer as the owner of all Units); and
(x) deliver to the Representative all other documents, instruments or certificates required to be delivered by the Buyer at or prior to the Closing pursuant to this Agreement (including Section 8.3 hereof).
(b) At the Closing, Oak will deliver to the Buyer:
(i) a certificate or certificates representing the Shares, Oak Shares duly endorsed in blank or accompanied by stock powers duly endorsed in blank and all other documents and instruments necessary to vest in proper form for transferthe Buyer all of Oak’s right, title and interest in and to the Oak Shares, free and clear of all Liens;
(bii) the Books and Records of Oak Blocker; and
(iii) an executed copy of the Closing Operating Agreement Amendment (showing Oak Blocker and the Buyer as the owner of all Units).
(c) At the Closing, each Class A Common Unit Holder will deliver to the Buyer an executed copy of the Closing Operating Agreement Amendment (showing Oak Blocker and the Buyer as the owner of all Units and each Class A Common Unit Holder as withdrawing as a member of Parent) and all other documentation and instruments necessary to vest in the Buyer all of such Class A Common Unit Holder’s right, title and interest in to the Class A Common Units, free and clear of all Liens; and
(d) At the Closing, each Class B Common Unit Holder will deliver to the Buyer:
(i) an executed copy of the Closing Operating Agreement Amendment (showing Oak Blocker and the Buyer as the owner of all Units and each Class B Unit Holder as withdrawing as a member of Parent) and all other documents and instruments necessary to vest in the Buyer all of such Class B Common Unit Holder’s right, title and interest in and to the Class B Common Units, free and clear of all Liens; and
(ii) all original executed Restricted Unit Agreements with respect to the Class B Common Units set forth opposite such Class B Common Unit Holder’s name on the Seller Spreadsheet, which agreements shall pay to be terminated as of the Effective Time.
(e) At the Closing, each Seller and the Representative, as applicable, will deliver to the Buyer:
(i) all copies of the consents, approvals and notices (if any) listed on Schedule 2.4(e)(i) to this Agreement (collectively, the “Required Consents”) obtained or provided, as the case may be, in form and substance satisfactory to the Buyer;
(ii) evidence satisfactory to the Buyer of the completion of the matters set forth in Section 7.4(b);
(iii) customary pay-off letters or similar acknowledgments of the full discharge and satisfaction of any Indebtedness of Parent or any Subsidiary setting forth the amount owed as of the Closing Date and indicating that upon payment of such amount, such Indebtedness will be discharged in full and all related Liens (other than Permitted Liens) will be released and removed;
(iv) the Non-Oak Sellers Indemnity Escrow Agreement, duly executed by wire transfer the Representative;
(v) the Oak Indemnity Escrow Agreement, duly executed by the Representative;
(vi) a properly prepared and executed certificate of immediately available funds non-foreign status under Treas. Reg. §1.1445-2(b)(2);
(vii) a properly completed and executed Form W-9 or Form W-8 as applicable;
(viii) the Books and Records of each of the Acquired Companies;
(ix) the resignations, effective as of the Closing, pursuant to Section 7.3;
(x) a bank account designated copy of (A) the certificate of formation, as amended (or similar incorporation or formation documents), of each Acquired Company, certified by the Secretary of State of the jurisdiction in writing by which each such Seller entity is incorporated or organized, as of a date not earlier than three (such designation to be made at least two (23) Business Days prior to the Closing Date)and accompanied by a certificate of the Secretary or Assistant Secretary of each such entity, dated as of the Closing, stating that no amendments have been made to such certificate of formation (ior similar incorporation or formation documents) with respect to the Common Shares held by since such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) date and (iiB) with respect to all other Organizational Documents of each Acquired Company, certified by the Preferred Shares held by Secretary or Assistant Secretary of each such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached heretoentity;
(cxi) good standing certificates for each Acquired Company from the Buyer shall deliver to each Seller a number Secretary of shares of Buyer Common Stock, which may be represented by one State (or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (xother appropriate Person) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition jurisdiction in which each such entity is incorporated or organized and from the Secretary of Closing Date Common Stock Cash Consideration; providedState (or other appropriate Person) in each other jurisdiction in which such Acquired Company is qualified to do business as a foreign entity, that any payment hereunder to be made in the form each case dated as of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
a date not earlier than five (d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (25) Business Days prior to the Closing DateClosing; and
(xii) an amount equal all other documents, instruments or certificates required to be delivered by the Sellers at or prior to the Credit Closing pursuant to this Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;Section 8.2 hereof).
(f) At the Closing, Parent will deliver to the Buyer shall deliver by wire transfer each of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation documents, instruments or certificates required to be made delivered by Parent at least two (2) Business Days or prior to the Closing Date) the Sellers’ Representative Expenses Amount;(including Section 8.2).
(g) At Closing, the Company will deliver to the Buyer shall deliver by wire transfer the Seller Spreadsheet and each of immediately available funds to the bank account designated in writing by Avista Capital Partnersother documents, LP (such designation instruments or certificates required to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified delivered by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one at or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with (including Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws8.2).
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer will:
(ai) pay to each Shareholder by transfer of immediately available funds in accordance with the instructions provided by such Shareholder and amount equal to (A) $1.52 multiplied by (B) the Sellers number of Shares that the Shareholder elects to be exchanged for cash, as set forth opposite such Shareholder’s name on Schedule A hereto under the heading “Number of Shares to be Exchanged for Cash”; and
(ii) issue to each Shareholder a certificate or certificates representing the number of Buyer Common Shares equal to (A) 0.132 multiplied by (B) the number of Shares that the Shareholder elects to be exchanged for Buyer Common Shares (the “Exchange Shares”), as set forth opposite such Shareholder’s name on Schedule A hereto under the heading “Number of Shares to be Exchanged for Buyer Common Shares,” provided that no fractional shares of Buyer Common Shares shall be issued upon the Closing, and in lieu of any fractional shares to which a Shareholder would otherwise be entitled, the Buyer shall pay cash in an amount equal to the product (calculated to the nearest cent) of such fraction and $11.50.
(iii) deliver to the Representative all other documents, instruments or certificates reasonably required to be delivered by the Buyer at or prior to the Closing pursuant to this Agreement (including Section 6.3 hereof).
(b) At the Closing, each Shareholder and the Representative, as applicable, will deliver to the Buyer:
(i) a certificate or certificates representing the Shares, number of Shares set forth opposite such Shareholder’s name on Schedule A hereto under the heading “Number of Shares Owned,” duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transferand with all required share transfer tax stamps affixed;
(bii) all other documents and instruments necessary to vest in the Buyer shall pay all of such Shareholder’s right, title and interest in and to each Seller by wire transfer the Shares, free and clear of immediately available funds all Liens, subscriptions, options, warrants, calls, proxies, commitments and Contracts of any kind;
(iii) all copies of the consents, approvals and notices (if any) listed on Section 2.3(b)(iii) of the Shareholders’ Disclosure Schedule obtained or provided, as the case may be, in form and substance reasonably satisfactory to a bank account designated in writing by each such Seller the Buyer; and
(such designation iv) all other documents, instruments or certificates reasonably required to be made delivered by such Shareholder at least two (2) Business Days or prior to the Closing Date), pursuant to this Agreement (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with including Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws6.2 hereof).
Appears in 1 contract
Sources: Share Purchase Agreement (ALPHA & OMEGA SEMICONDUCTOR LTD)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) the Sellers shall deliver to Sellers the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Net Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated accounts of Sellers set forth in writing by the Sellers’ Representative Closing Worksheet;
(ii) issue the Seller Units in the name of each Seller and other Person entitled thereto in accordance as set forth in the Closing Worksheet, but retain such designation Seller Units in escrow until released as provided herein;
(iii) issue and deliver the Non-escrow Units to the Sellers entitled thereto as set forth in the Closing Worksheet; and
(iv) deliver to Sellers all other agreements, documents, instruments or certificates required to be made delivered by Buyer at least two (2) Business Days or prior to the Closing Date) the Sellers’ Representative Expenses Amount;pursuant to Section 7.03 of this Agreement.
(gb) At the Buyer Closing, Sellers shall deliver to Buyer:
(i) an assignment of the Membership Interests to Buyer in form and substance reasonably satisfactory to Buyer (the “Assignment”), duly executed by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partnerseach Seller; and
(ii) all other agreements, LP (such designation documents, instruments or certificates required to be made delivered by Sellers at least two (2) Business Days or prior to the Closing Datepursuant to Section 7.02 of this Agreement.
(c) an amount equal In addition to the Management Feedeliveries contemplated by Sections 2.03(a) and 2.03(b), at the Closing (or, in the case of the Release Agreements described in clause (ii) below, as specified by soon as practicable, but in no event more than ten (10) Business Days, following the Closing), Sellers shall deliver or cause to be delivered to Buyer:
(i) a list of and the amount due to each holder of Company in accordance with Section 2.1(b)Indebtedness;
(hii) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior subject to the Closing Date) amounts equallast few sentences of this Section 2.03(c), a release and waiver of claims agreement (specifically including, in the aggregatecase of Persons having options or equity interests in the Company, a waiver of all applicable appraisers’ and/or dissenters’ rights), in a form reasonably acceptable to Buyer (each, a “Release Agreement”), duly executed by each of Casual Dining Ventures, Inc., M▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, F▇▇▇ ▇▇▇▇▇, K▇▇▇▇ ▇▇▇▇▇, T&T and each Greenstalk Entity;
(iii) evidence reasonably satisfactory to Buyer that the Seller Transaction ExpensesUltimate Net Loss Obligation Agreement dated October 12, as specified by 2012 between the Company in accordance and Franchise Credit, LLC has been, or as of the Closing shall be, terminated, it being understood that the payoff letter or confirmation of satisfaction from Franchise Credit, LLC, together with Section 2.1(b)the Repayment and Release Agreement effective as of December 18, 2017, by and among the Company, J▇▇▇ ▇▇▇▇ and Franchise Credit, LLC, shall be sufficient evidence thereof; and
(iiv) evidence reasonably satisfactory to Buyer that Chitowngus LLC is waiving and declining to exercise its right to terminate the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing Area Director Agreement dated December 22, 2010, as amended by the Amendment to Area Director Agreement dated December 22, 2010, by and between the Company (such designation and Chitowngus LLC, which right to terminate arises as a result of the transactions contemplated hereby. Notwithstanding anything to the contrary expressed or implied in this Agreement, Buyer understands that Sellers and the Company are in dispute with T&T and the Greenstalk Entities, which disputes make it unlikely that Sellers shall be made at least two (2) Business Days able to deliver a Release Agreement from T&T or any Greenstalk Entity on or prior to the Closing Datetenth (10th) amounts equalBusiness Day following the Closing. Accordingly, in when and if Sellers and T&T or the aggregate, Greenstalk Entities agree to the Transaction Bonuses (number of Units to which any such Person is entitled, Sellers shall so notify Buyer in writing and the Company shall timely remit all applicable withholding obligations with respect number of Seller Units issued to such Transaction Bonuses Person on the Closing Date shall be adjusted to reflect such agreement (with any upward adjustment reducing, on a pro rata basis, the proper third parties in accordance with all applicable Lawsnumber of Seller Units issued to Sellers and any downward adjustment increasing, on a pro rata basis, the number of Seller Units issued to Sellers).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Fat Brands, Inc)
Transactions to be Effected at the Closing. (a) At the Closing, each Seller shall deliver to the Purchaser all agreements, documents, instruments and certificates required to be delivered by such Seller (and, where applicable, executed by such Seller and/or the Company or a duly authorized officer of such Seller and/or Company) at or prior to Closing pursuant to Section 7.2 of this Agreement.
(b) At the Closing, the following transactions shall be effected by the partiesPurchaser shall:
(ai) the Sellers shall deliver to the Buyer certificates representing the SharesPaying Agent, duly endorsed in blank free and clear of any withholding or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date)deductions, (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Closing Payment Amount minus the Adjustment Escrow Amount, the Indian Cash Escrow Amount and (only if a Carve-out has occurred) the Carve-out Escrow Amount and minus the Banking Institutions Payoff Amount (net of the amount by which the Purchase Price has been reduced as a result of the Banking Institutions Payoff Amount also constituting Indebtedness pursuant to Section 2.2(a)) in immediately available funds (the “Paying Agent Amount”) to the account specified by the Paying Agent to the Purchaser to be further allocated by the Paying Agent, in accordance with Section 2.8 and Section 2.10 below, as follows:
A. to each Seller (other than holders of Section 102 Shares), such Seller’s Relevant Portion of the Paying Agent Amount;
B. the Non-Section 102 Amount to, at the choice of the Sellers’ Representative as shall be communicated to the Paying Agent within ten (e10) Business Days hereof: (i) the Buyer payroll processing service or system of the applicable non-Israeli resident Subsidiary; who shall deliver remit such amounts to the Escrow applicable Non-Section 102 Holders through local payroll (less the applicable Taxes required to be withheld with respect to such payment) or (ii) a paying agent designated by the Sellers’ Representative (reasonably acceptable to the Purchaser);
C. the Warrant Amount to the Company Warrantholder;
D. an amount equal to the Section 102 Amount, including any shares as set forth on the Consideration Allocation Certificate to the 102 Trustee, to be held and released in accordance with the provisions of Buyer Common StockSection 102, if applicable, subject to the receipt (on or after Closing) by the 102 Trustee of a duly executed Option Cancellation Agreement and in accordance with Section 2.8 below; and
(ii) the Section 3(i) Amount to the Section 3(i) Holders,
(iii) deliver to the Escrow Agent an amount equal to be held the Adjustment Escrow Amount, the Indian Cash Escrow Amount, the Indian Sale Proceeds Escrow Amount and disbursed in accordance with the terms of the Escrow Agreement;
(fonly if a Carve-out has occurred) the Buyer shall deliver Carve-out Escrow Amount, free and clear of any withholding or deductions, by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation Escrow Account, which amount is to be made at least two (2held and released in accordance with the provisions of Sections 2.7(g), 2.7(i) Business Days prior to and 2.7(j), and the Closing Date) the Sellers’ Representative Expenses AmountEscrow Agreement;
(giv) the Buyer shall deliver by wire transfer of immediately available funds to each Banking Institution to the bank account designated by such Banking Institution in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) applicable Bank Payoff Letter an amount equal to such Banking Institution’s portion of the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b)Banking Institutions Payoff Amount; and
(iv) the Buyer shall deliver by wire transfer of immediately available funds to one each Seller all agreements, documents, instruments or more bank accounts designated in writing certificates required to be delivered by the Company (such designation to be made Purchaser at least two (2) Business Days or prior to Closing pursuant to Section 7.3 of this Agreement.
(c) All transactions to take place at the Closing shall be deemed to take place simultaneously on the Closing Date) amounts equal, in the aggregateand no transaction hereunder shall be deemed to have been completed, or any document delivered, until all such transactions have been completed and all agreements, documents, instruments or certificates required to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)be delivered hereunder have been delivered.
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, Buyer shall pay in cash an aggregate amount equal to: (i) $10,350,000 minus the following transactions amount of the Free Cash Estimate (if it is a negative amount) (the “Closing Payment”) by wire transfer to one or more accounts of such Sellers, as designated in writing by each Seller to Buyer no later than three Business Days prior to the Closing Date, (ii) the amount of the Free Cash Estimate (if it is a positive amount) by wire transfer to one or more accounts of such Sellers, as designated in writing by each Seller to Buyer and (iii) $1,050,000 (the “Initial Escrow Deposit”) to ▇▇ ▇▇▇▇▇▇ Chase, N.A. as escrow agent (the “Escrow Agent”) pursuant to the Escrow Agreement (the Initial Escrow Deposit, together with any additional funds that may be placed into the escrow account from time to time, shall be effected by the parties:“Escrow Funds”), which Escrow Funds shall be released in accordance with the terms and conditions of the Escrow Agreement.
(ab) At the Closing, Sellers’ Representative and Buyer shall enter into the Escrow Agreement with the Escrow Agent under which the Escrow Agent shall hold the Escrow Funds (i) pending evaluating the Actual Net Revenue Amount of the Domain Name Portfolio as set forth in Section 2.3(c) below and (ii) as a source of recovery for any indemnification claims against Sellers under Article VIII.
(c) The Escrow Agreement will provide for payment of the Escrow Funds to the Sellers at the end of the Escrow Period upon joint written instructions of Buyer and Sellers’ Representative, net of any reductions for pending or resolved indemnification claims against Sellers under Article VIII, to be adjusted as follows: for each dollar that the Actual Net Revenue Amount is less than the Target Net Revenue Amount, the Escrow Agent will, upon joint written direction from Buyer and Sellers’ Representative, holdback $75 from the Escrow Funds, which holdback amount will be released to Buyer. Notwithstanding the foregoing, in no event shall Sellers be liable or responsible to pay Buyer an amount in excess of $1,050,000 as a result of the foregoing calculation. The parties hereto acknowledge and agree that the Sellers do not make any representation, warranty, indemnity or guarantee of attaining any particular level of Actual Net Revenue Amount.
(d) At the Closing, Sellers shall deliver to Buyer (i) certificates for the Buyer certificates representing the Shares, Shares duly endorsed in blank or accompanied by stock powers duly endorsed in blank blank, (ii) all other documents and instruments reasonably necessary to vest in proper form for transfer;
Buyer all of Sellers’ right, title and interest in and to the Shares, free and clear of all Liens, and (biii) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation all other documents, instruments or certificates required to be made delivered by Sellers at least two (2) Business Days or prior to the Closing Date)pursuant to this Agreement.
(e) At the Closing, (i) with respect Buyer shall deliver to the Common Shares held Sellers all other documents, instruments or certificates required to be delivered by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated Buyer at or prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect pursuant to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow this Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer will:
(ai) the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller (by wire transfer of immediately available funds in U.S. dollars to a bank such account designated in writing or accounts specified by each such Seller (such designation the Sellers’ Representative to be made the Buyer at least two (2) three Business Days prior to the Closing Date), Closing) an amount equal to (i) with respect to the Common Shares held by such Seller, the product of (xA) the Per Common Share Closing Date Cash Consideration, if anyAmount, multiplied by (yB) such Seller’s Pro-Rata Share;
(ii) instruct the Common Shares outstanding Escrow Agent to release the Deposit and the Deposit Interest to the Sellers’ Representative (on behalf of the Sellers in proportion to their respective Pro-Rata Shares) if the Deposit is still held by the Escrow Agent on the Closing Date owned Date;
(iii) deliver to the Sellers’ Representative and the Company a counterpart signature page to the A&R Operating Agreement, duly executed by such Seller as listed on Schedule 4.5(athe Buyer;
(iv) attached hereto deliver to the Sellers’ Representative and the Company a guarantee for certain of the Buyer’s obligations under the A&R Operating Agreement, in form and substance reasonably satisfactory to the Sellers’ Representative, duly executed by the Guarantor;
(as v) deliver to the same may Sellers’ Representative a copy of the R&W Insurance Policy; and
(vi) deliver to the Sellers’ Representative all other documents, instruments or certificates required to be updated delivered by the Buyer at or prior to the Closing pursuant to Section 7.2.
(b) At the Closing, the Sellers’ Representative will:
(i) deliver to the Buyer an instrument of assignment or other instrument of transfer in accordance with Section 2.1(bthe form attached hereto as Exhibit A, duly executed by each Seller, for transfer and sale of the applicable Purchased Interests to the Buyer, in each case free and clear of any Liens (other than Liens (A) arising pursuant to, or as a result of, the Transactions, (B) arising under the Organizational Documents of the Company and (C) arising pursuant to applicable securities Laws)) and ;
(ii) with respect to each Seller, deliver to the Preferred Shares held Buyer an executed certificate of such Seller’s non-foreign status under Section 1.1445-2(b)(2) of the Treasury Regulations, in form and substance reasonably satisfactory to the Buyer, duly executed by such Seller;
(iii) with respect to each Seller, deliver to the product Buyer an executed affidavit stating, under penalties of perjury, for purposes of Section 1446(f) of the Code (xand reflecting any binding guidance then available as to such affidavit), such Seller’s U.S. taxpayer identification number and that such Seller is not a foreign person, in form and substance reasonably satisfactory to the Buyer, duly executed by such Seller;
(iv) with respect to each Seller, deliver to the Per Preferred Share Cash Consideration multiplied Buyer a properly completed IRS Form W-9 Request for Taxpayer Identification Number and Certification, confirming that such Seller is not subject to backup withholding;
(v) deliver to the Buyer and the Company counterpart signature pages to the A&R Operating Agreement, duly executed by each Seller; and
(yvi) deliver to the number of Preferred Shares outstanding on Buyer all other documents, instruments or certificates required to be delivered by the Sellers at or prior to the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;pursuant to Section 7.1.
(c) At the Buyer shall deliver to each Seller a number of shares of Buyer Common StockClosing, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall Company will deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior counterpart signature pages to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital PartnersA&R Operating Agreement, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified duly executed by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equalCompany, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (USPB and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)New Kleinco.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Leucadia National Corp)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers Each Seller shall deliver to Purchaser, in a form reasonably satisfactory to Purchaser, an instrument of conveyance evidencing the Buyer certificates representing the Shares, transfer of all uncertificated Membership Interests set forth opposite such Seller’s name on Annex A duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form such Seller for transfer;transfer to Purchaser.
(b) the Buyer Purchaser shall pay deliver to each Seller (other than ▇▇. ▇▇▇ ▇▇▇▇▇▇) payment, by wire transfer of immediately available funds to a bank account designated in writing by each such Seller Member Representative (such designation to be made at least two (2) three Business Days prior to the Closing Date), (i) with respect in immediately available funds in an amount equal to the Common Shares held by such Seller, the product ’s share of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned Amount (such share as designated in writing by such Seller as listed Member Representative (on Schedule 4.5(a) attached hereto (as the same may be updated prior behalf of Sellers pursuant to the Closing in accordance with Section 2.1(b6.11(b)) and (ii) with respect to the Preferred Shares held by such in a written schedule setting forth each Seller, the product ’s share of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned Amount by such Seller as listed on Schedule 4.5(a) attached hereto;individual payment amount and percentage at least three Business Days before the Closing Date).
(c) the Buyer Purchaser shall deliver to each Seller ECS Federal Holding Co. a number note in the amount equal to ECS Federal Holding Co.’s share of shares the Closing Date Amount (such share as designated in writing by Member Representative (on behalf of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at Sellers pursuant to Section 6.11(b)) in a written schedule setting forth each Seller’s election, equal to the product share of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned Amount by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to individual payment amount and percentage at least three Business Days before the Closing in accordance with Section 2.1(b))Date) that earns interest at the short-term applicable Federal rate and matures two (2) days after the Closing Date, less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made substantially in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; andExhibit C.
(d) Purchaser shall deposit with the Buyer shall deliver to the Bank Adjustment Escrow Agent, by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative Adjustment Escrow Agent (such designation to be made the “Adjustment Escrow Account”) at least two (2) three Business Days prior to the Closing Date) , an amount equal to the Sellers’ Representative Expenses Adjustment Escrow Amount;, which amount shall be held by the Adjustment Escrow Agent in an escrow fund (the “Adjustment Escrow Fund”), subject to the terms of the Adjustment Escrow Agreement and this Agreement (including Section 1.04(d)(ii)).
(ge) Purchaser shall deposit with the Buyer shall deliver Indemnity Escrow Agent, by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP the Indemnity Escrow Agent (such designation to be made the “Indemnity Escrow Account”) at least two (2) three Business Days prior to the Closing Date) , an amount equal to the Management FeeIndemnity Escrow Amount, as specified which amount shall be held by the Company Indemnity Escrow Agent in accordance with Section 2.1(ban escrow fund (the “Indemnity Escrow Fund”);, subject to the terms of the Indemnity Escrow Agreement and this Agreement (including Article IX).
(hf) the Buyer Purchaser shall deliver to Member Representative by wire transfer of immediately available funds to one or more a bank accounts account designated in writing by the Company (such designation to be made Member Representative at least two (2) three Business Days prior to the Closing DateDate the Member Representative Amount.
(g) amounts equal, Purchaser shall deliver to Member Representative a certificate of insurance or other written evidence in a form reasonably acceptable to Member Representative of in-force coverage effective as of the aggregate, Closing under the R&W Insurance.
(h) Member Representative shall deliver to Purchaser written resignations of each of the Seller Transaction Expenses, as specified by managers of the board of managers (or similar governing body) of the Company in accordance with Section 2.1(b); andand the Company Subsidiaries to be effective as of the Closing.
(i) the Buyer Each Seller shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company Purchaser a properly completed Internal Revenue Service (such designation to be made at least two (2“IRS”) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Form W-9.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (On Assignment Inc)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions Buyer shall be effected by the partiesdeliver to Seller:
(ai) The Purchase Payment by wire transfer of immediately available funds to an account of Seller designated in writing by Seller to Buyer no later than three Business Days prior to the Sellers Closing Date;
(ii) A certificate executed by Buyer representing and warranting to Seller that each of Buyer’s representations and warranties in this Agreement was accurate in all respects as of the date of this Agreement and is accurate in all respects as of the Closing Date as if made on the Closing Date;
(iii) All other agreements, documents, instruments, license agreements substantially in the form of Exhibit B, or certificates (collectively, the “Ancillary Agreements”) required to be delivered by Buyer at or prior to the Closing pursuant to Article 7 of this Agreement or otherwise necessary to effect the Contemplated Transactions.
(b) At the Closing, Seller shall deliver to the Buyer Buyer:
(i) Stock certificates representing evidencing the Shares, free and clear of all encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank in the form of Exhibit C to this Agreement (the “Assignment of Shares”);
(ii) An executed copy of the assignment of Membership Interests free and clear of all encumbrances, duly endorsed in blank or accompanied by such other instruments of transfer duly executed in proper blank in the form for transferof Exhibit D to this Agreement (the “Assignment of Membership Interest”);
(biii) A certificate executed by Seller representing and warranting to Buyer that each of Seller’s representations and warranties in this Agreement was accurate in all respects as of the Buyer shall pay to each Seller by wire transfer date of immediately available funds to a bank account designated this Agreement and is accurate in writing by each such Seller all respects as of the Closing Date as if made on the Closing Date; and
(such designation iv) All other agreements, documents, instruments, or certificates required to be made delivered by Seller at least two (2) Business Days or prior to the Closing Date), (i) with respect pursuant to Article 8 of this Agreement or otherwise necessary to effect the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Contemplated Transactions.
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) deliver to SBE Holdco:
(A) the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
Closing Date Payment less (b1) the Buyer shall pay to each Seller Purchase Price Adjustment Escrow Amount, (2) the Indemnification Escrow Amount, and (3) the Tax Indemnification Escrow Amount, by wire transfer of immediately available funds to a bank an account designated in writing by each such Seller (such designation Sellers to be made at least two (2) Business Days Buyer prior to the Closing Date), ; and
(i) with respect to the Common Shares held by such Seller, the product of (xB) the Per Common Share Closing Date Cash ConsiderationAncillary Documents and all other agreements, if anydocuments, multiplied instruments or certificates required to be delivered by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated Buyer at or prior to the Closing in accordance with pursuant to Section 2.1(b)) and 6.03 of this Agreement.
(ii) with respect to pay, on behalf of the Preferred Shares held by such SellerCompany or Sellers, the product of following amounts:
(xA) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common StockIndebtedness, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated accounts and in writing by the Sellers’ Representative amounts specified in the Estimated Closing Statement; and
(such designation to be made at least two (2B) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver Transaction Expenses, by wire transfer of immediately available funds to the bank account designated accounts and in writing by Avista Capital Partners, LP the amounts specified in the Estimated Closing Statement.
(iii) deliver to the Escrow Agent:
(A) the Purchase Price Adjustment Escrow Amount (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Feeamount, as specified by the Company including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with Section 2.1(b);
(hthe Escrow Agreement, the “Purchase Price Adjustment Escrow Fund”) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company Escrow Agent, to be held for the purpose of securing the obligations of Sellers in Section 1.04(d);
(B) the Indemnification Escrow Amount (such designation to be made at least two (2) Business Days prior to the Closing Date) amount, including any interest or other amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company earned thereon and less any disbursements therefrom in accordance with Section 2.1(b); and
(ithe Escrow Agreement, the “Indemnification Escrow Fund”) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company Escrow Agent, to be held for the purpose of securing the obligations of Sellers in ARTICLE VII (excluding Section 7.10);
(C) the Tax Indemnification Escrow Amount (such designation amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Tax Indemnification Escrow Fund”) by wire transfer of immediately available funds to accounts designated by the Escrow Agent, to be made held for the purpose of securing the obligations of Sellers in Section 7.10; and
(D) the Escrow Agreement.
(b) At the Closing, Sellers shall, or shall cause SBE Holdco to, deliver to Buyer:
(i) an assignment of membership interests assigning the Units to Buyer, free and clear of all Encumbrances, in a form reasonably acceptable to Buyer; and
(ii) the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by Sellers and SBE Holdco, respectively, at least two (2) Business Days or prior to the Closing Date) amounts equal, in the aggregate, pursuant to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Section 6.02 of this Agreement.
Appears in 1 contract
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the partiesParties:
(a) the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two three (23) Business Days prior to the Closing Date), the Estimated Purchase Price less the Escrow Amount.
(b) Seller shall (i) with respect deliver to Buyer termination and payoff letter(s) for the Common Shares held by such Seller, Repaid Indebtedness in form and substance reasonably satisfactory to Buyer (the product “Repaid Indebtedness Payoff Letters”) (drafts of which must be provided to Buyer no less than five (x5) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated Business Days prior to the Closing in accordance with Section 2.1(b)Date) and (ii) cause any Encumbrances in connection with respect the Repaid Indebtedness to be removed (with evidence of the Preferred Shares held by same, such Selleras UCC termination statements, to be provided to Buyer at or as soon as reasonably practicable following the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;Closing).
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stockpay, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder cause to be made in paid, on behalf of Seller and/or the form of shares of Buyer Common Stock shall be made only in whole sharesCompanies, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank as applicable, by wire transfer of immediately available funds to such bank account of the Bank account(s) designated in writing by the Bank Seller (such designation to be made at least two not less than three (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (23) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;Repaid Indebtedness to the applicable lender(s) in accordance with the Repaid Indebtedness Payoff Letters.
(gd) the Buyer shall deliver to Escrow Agent, for deposit in an escrow account (the “Escrow Account”), the amount set forth on Section 2.2(d) of the Disclosure Schedule (the “Escrow Amount”), to be held by the Escrow Agent in the Escrow Account and distributed by the Escrow Agent in accordance with the terms of the Escrow Agreement and the applicable provisions of this Agreement.
(e) Buyer shall pay, or cause to be paid, on behalf of the Seller and/or the Companies, as applicable, by wire transfer of immediately available funds to the such bank account account(s) designated in writing by Avista Capital Partners, LP the Companies (such designation to be made at least two not less than three (23) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Companies Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers The Seller shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer, with appropriate transfer Tax stamps, if any, affixed;
(b) the The Buyer shall pay to each the Seller by wire transfer of immediately available funds to a bank account designated in writing by each such the Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and Estimated Purchase Price minus (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed amount set forth on Schedule 4.5(a1.1(a) attached hereto(the “Indemnity Escrow Amount”);
(c) the The Buyer shall deliver to each Seller a number of shares of Buyer Common Stockthe Escrow Agent, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to for deposit in an escrow account (the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)“Indemnity Escrow Account”), less any shares of Buyer Common Stock delivered the Indemnity Escrow Amount, to be held by the Escrow Agent in a separate escrow account and distributed by the Escrow Agent in accordance with the last sentence terms of the definition Escrow Agreement and the applicable provisions of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; andthis Agreement;
(d) The Buyer shall, on behalf of the Buyer shall Company and/or the applicable Company Subsidiary, deliver to the Bank ▇▇▇▇▇ Fargo and Regiment, by wire transfer of immediately available funds to such bank account of the Bank accounts designated in writing by the Bank (such designation to be made at least two (2) Business Days prior pursuant to the Closing Date) payoff letters delivered pursuant to Section 8.7 hereof, an amount equal to the Credit Agreement Outstanding Facilities Payoff Amount;; and
(e) The Buyer shall, on behalf of the Buyer shall Company and/or the applicable Company Subsidiary, deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver appropriate payees, by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in an aggregate amount sufficient to pay the aggregate, to the Seller Transaction Estimated Company Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the partieseffected:
(a) the Sellers Parent shall deliver (or cause to be delivered):
(i) to each Seller, in accordance with Section 2.14(e) and subject to Section 2.6(a)(iv), the Buyer certificates representing aggregate number of Per Share Consideration Shares to be delivered to such Seller at the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transferClosing;
(bii) to the Buyer shall pay to each Seller Payment Agent, by wire transfer of immediately available funds to a bank the account designated in writing by each the Payment Agent at least one (1) Business Day prior to the Closing Date, an amount equal to (A) the Closing Payment, less (B) any amounts owed on account of Dissenting Shares, plus (C) cash sufficient to make payments in lieu of fractional shares pursuant to Section 2.6(h), for further distribution to the Sellers (other than the Dissenting Stockholders) in accordance with Section 2.6(a)(iii);
(iii) to the parties designated in the Payoff Letters, by wire transfer of immediately available funds to such Seller bank account or bank accounts designated in the Payoff Letters, the amounts set forth in the Payoff Letters (the “Payoff Amounts”);
(iv) to such designation parties to be made whom any Company Expenses are payable pursuant to the instruction delivered pursuant to Section 2.9(d), by wire transfer of immediately available funds to such bank account or bank accounts designated pursuant to Section 2.9(d), the applicable amount set forth in the instruction delivered pursuant to Section 2.9(d);
(v) to the Escrow Agent, for deposit in an escrow account (the “Escrow Account”), by wire transfer of immediately available funds to the account designated in the Escrow Agreement or otherwise designated in writing by the Escrow Agent at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing an amount in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, cash equal to the product of (x) Escrow Amount, to be held by the Per Share Buyer Stock Consideration multiplied Escrow Agent and distributed by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence terms of the definition Escrow Agreement and the applicable provisions of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up this Agreement;
(vi) to the nearest whole share; and
Stockholders’ Representative, for deposit in an account established for the benefit of the Stockholders’ Representative (d) the Buyer shall deliver to the Bank “Stockholders’ Representative Reserve Account”), by wire transfer of immediately available funds to such bank an account of the Bank designated in writing by the Bank (such designation to be made Stockholders’ Representative at least two (2) Business Days prior to the Closing Date) , an amount in cash equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Stockholders’ Representative Reserve Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held by the Stockholders’ Representative in a separate account for purposes of satisfying fees, costs and disbursed expenses incurred in its capacity as the Stockholders’ Representative and otherwise in accordance with this Agreement (provided that, for Tax purposes, the terms of the Escrow Agreement;
(f) the Buyer Stockholders’ Representative Reserve Account shall deliver by wire transfer of immediately available funds to the bank account designated in writing be treated by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, parties as specified having been received and voluntarily set aside by the Company in accordance with Section 2.1(bSellers at the time of Closing);
(hvii) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equalStockholders’ Representative, in a copy of the aggregate, to the Seller Transaction Expenses, as specified Escrow Agreement duly executed by the Company in accordance with Section 2.1(b)Parent; and
(viii) to the Company, a certificate dated as of the Closing Date, duly executed by an executive officer of the Parent and each Merger Sub, certifying that (A) the conditions set forth in Section 9.3(a) and Section 9.3(b) have been satisfied; (B) attached thereto are the resolutions or written consent of the board of directors of Parent, Merger Sub I and Merger Sub II authorizing and approving the execution, delivery and performance of this Agreement and the consummation of the Mergers and the other transactions contemplated hereby and such resolutions or written consent of the board of directors of Parent, Merger Sub I and Merger Sub II have not been amended, modified, revoked or rescinded; (C) attached thereto are the resolutions or written consent of the sole stockholder of Merger Sub I and Merger Sub II authorizing and approving the execution, delivery and performance of this Agreement and the consummation of the Mergers and the other transactions contemplated hereby and such resolutions of the sole stockholder of Merger Sub I and Merger Sub II have not been amended, modified, revoked or rescinded; (D) the Funding Agreement has not been amended, modified or terminated, nor has Parent waived any material term thereof, in each case, in a manner that would reduce the resources set forth on Exhibit B attached hereto; and (E) the R&W Insurance Policy has been, or at the Closing will be, issued and bound by the R&W Insurer.
(ix) to the applicable Key Individual, employment agreements in the forms attached hereto as Exhibit F (the “Employment Agreements”) duly executed by Parent or its applicable Affiliate.
(b) The Company shall deliver (or cause to be delivered):
(i) to Parent, duly executed copies of the Buyer shall deliver by wire transfer Payoff Letters;
(ii) to Parent, a copy of immediately available funds to one or more bank accounts designated in writing the Escrow Agreement duly executed by the Company Stockholders’ Representative and the Escrow Agent;
(such designation iii) to Parent, a certificate from the State of Delaware as to the good standing of the Company, dated within ten days of the Closing Date;
(iv) to Parent, the Allocation Schedule, as it may be adjusted pursuant to Section 2.9, duly executed by an executive officer of the Company;
(v) to Parent, the Closing Statement, including the Estimated Adjustment Amount, as it may be adjusted pursuant to pursuant to Section 2.9, duly executed by an officer of the Company;
(vi) to Parent, the Employment Agreements duly executed by the Key Individuals;
(vii) to Parent, (A) a copy of a resignation letter, in form and substance reasonably satisfactory to Parent, delivered by each Key Individual to any employer of the Key Individual (other than the Company), to be made effective no later than the Closing, or (B) other evidence reasonably satisfactory to Parent that neither of the Key Individuals has any obligation to any college, university, government agency or similar institution to return to work at least two or conduct work for any such college, university, government agency or similar institution, including, for example, a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ University stating that such Key Individual will retain his title, will no longer be an employee, will have no ongoing responsibilities to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rice University, will have no ongoing role with respect to grants, and will have no obligation under ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ University’s intellectual property policies;
(viii) to Parent, duly executed agreements terminating the Related Party Contracts identified on Schedule 2.10(b)(viii);
(ix) to Parent, a certificate dated as of the Closing Date, duly executed by an executive officer of the Company, certifying that (A) the conditions set forth in Sections 9.2(a), (b) and (c) and have been satisfied; (B) attached thereto are (1) the resolutions or written consent of the board of directors of the Company authorizing and approving the execution, delivery and performance of this Agreement and the consummation of the Mergers and the other transactions contemplated hereby and (2) Business Days prior the Stockholder Written Consent; and (C) such resolutions or written consent of the board of directors of the Company and the Stockholder Written Consent have not been amended, modified, revoked or rescinded;
(x) to Parent, (A) a duly executed statement, dated as of the Closing Date and executed by the Company, certifying that the Shares do not constitute “United States real property interests” under Section 897(c)(1) of the Code, and (B) a “FIRPTA Notification Letter,” dated as of the Closing Date and duly executed by the Company, in each case, in substantially the form attached hereto as Exhibit G; and
(xi) to Parent, three flash drives, each containing a copy of the entire contents of the Data Room as of the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Sources: Merger Agreement (3d Systems Corp)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) deliver to Seller the Closing Payment, less the Escrow Amount, payable by wire transfer of immediately available funds;
(ii) deposit the Escrow Amount by wire transfer of immediately available funds into an account designated by the Escrow Agent (the “Escrow Account”) which shall be held and distributed in accordance with the terms of the Escrow Agreement only to satisfy any adjustments to the Purchase Price in favor of Buyer pursuant to Section 2.05;
(iii) pay or cause to be paid on behalf of Seller, the Shareholders and the Company (A) the Sellers Estimated Transaction Expenses, provided that any Estimated Transaction Expenses that are transaction bonuses, change-in-control payments, or similar payments made directly to proper Employees or other service providers of the Company shall be paid by Buyer or its applicable Affiliates, subject to any required Federal, state, and/or local tax withholding or other required deduction, and (B) the Estimated Closing Indebtedness (other than for capitalized lease obligations) to the applicable third parties and in accordance with the Payment Instructions; and
(iv) deliver to Seller all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Section 7.03 of this Agreement.
(b) At the Closing:
(i) Seller shall deliver to the Buyer certificates representing evidencing the SharesLLC Interests, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly endorsed executed in blank in proper form for transferblank;
(bii) the Seller shall deliver to Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation all other agreements, documents, instruments or certificates required to be made delivered by Seller at least two (2) Business Days or prior to the Closing Date), (i) with respect pursuant to the Common Shares held by such Seller, the product Section 7.02 of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole sharethis Agreement; and
(diii) the Buyer Each Shareholder shall deliver pay to the Bank Company the aggregate amount of all Indebtedness as of the Closing Date owed by wire transfer such Shareholder to the Company through offset of immediately available funds the proceeds otherwise payable to Seller, which shall be credited against a portion of the amount otherwise to be distributed by Seller to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;Shareholder.
(eiv) the Buyer shall deliver the Escrow AmountWithout duplication, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit collect all applicable withholding obligations with respect to such Transaction Bonuses to Affiliated Non-Trade Receivables and Employee Stock Purchases Receivables and pay all Affiliated Non-Trade Payables listed on Section 4.24 of the proper third parties in accordance with all applicable Laws)Disclosure Schedule.
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, Buyer shall deliver the following transactions shall be effected by the partiespayments:
(ai) The following amount shall be payable by wire transfer or other immediately available funds, to or on behalf of Kamber, to the account(s) set forth in the Closing Direction Letter: (Ownership Percentage of Kamber) x (Adjusted Closing Price)
(ii) The following amount shall be payable by wire transfer or other immediately available funds, to or on behalf of ▇▇▇▇▇▇▇▇▇, to the account(s) set forth in the Closing Direction Letter: ((Ownership Percentage of ▇▇▇▇▇▇▇▇▇) x (Adjusted Closing Price)) + (37.5% of the Additional Closing Payment)
(iii) The following amount shall be payable by wire transfer or other immediately available funds, to or on behalf of ▇▇▇▇▇, to the account(s) set forth in the Closing Direction Letter: ((Ownership Percentage of ▇▇▇▇▇) x (Adjusted Closing Price)) + (37.5% of the Additional Closing Payment)
(iv) the Indebtedness, payable by wire transfer of immediately available funds to the recipients thereof set forth in the Payoff Letters;
(v) the Sellers shall deliver Representative Holdback Amount, payable by wire transfer of immediately available funds to the Buyer certificates representing account set forth in the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;Closing Direction Letter; and
(bvi) the Buyer shall pay to each Seller Option Consideration, payable by wire transfer of immediately available funds to a bank Company account designated set forth in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date)Direction Letter.
(b) At the Closing, (i) with respect Buyer shall retain the Deferred Payments and 25% of the Additional Closing Payment; provided that it shall have no duty to the Common Shares held by segregate such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;funds.
(c) At the Buyer Closing, Sellers shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more stock certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence representing all of the definition of Closing Date Common Stock Cash Consideration; providedShares, that any payment hereunder to be made duly endorsed in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing blank by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amountrecord holder thereof, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed or accompanied by stock powers duly executed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equalblank, in the aggregateproper form for transfer approved by Buyer, to the Seller Transaction Expenses, as specified together with any other transfer or transmittal documentation reasonably requested by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Buyer.
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, Buyer shall deliver to Seller:
(i) the Purchase Price, or proof of payment of the Purchase Price
(ii) the Transaction Documents and all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Section 7.03 of this Agreement.
(b) At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers shall deliver to the Buyer Buyer:
(i) stock certificates representing evidencing the Shares, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly endorsed executed in blank in proper form for transfer;blank, with all required stock transfer tax stamps affixed thereto; and
(bii) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation Transaction Documents and all other agreements, documents, instruments or certificates required to be made delivered by Seller and the Company at least two (2) Business Days or prior to the Closing Date), pursuant to Section 7.02 of this Agreement.
(iiii) with respect The Company shall furnish to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding Buyer on or before the Closing Date owned true and complete copies of the audited consolidated balance sheets of the Company as of December 31, 2016 and December 31, 2017 and the related consolidated statements of operations, statement of changes in member’s equity and cash flows for the years then ended, together with the notes thereto, (the “Audited Financial Statements”), setting forth in each case in comparative form the corresponding figures for the corresponding dates and periods of the previous fiscal year, together with reports of auditors thereon.
(iv) Each of the Company and the Seller hereby agree to deliver to Buyer within 60 days of the date hereof those due diligence items (“Due Diligence Items”) requested by such Seller as listed on Schedule 4.5(aBuyer or set forth herein. Buyer shall have until the receipt of all Due Diligence Items completion of the Audited Financial Statements and thirty (30) attached hereto days thereafter (as “Due Diligence Period”) to review and to approve the same may be updated Due Diligence Items and any other information or documentation it acquires, including, but not limited to the Audited Financial Statements. If Buyer, in its sole discretion, does not approve any of the Due Diligence Items or any of the information provided to Buyer pursuant to this section or any information or documentation it otherwise acquires at any time prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to expiration of the Preferred Shares held by such SellerDue Diligence Period, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificatedBuyer, at each Seller’s electionits option, equal may terminate this Agreement by written notice to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated Sellers delivered at any time prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence expiration of the definition Due Diligence Period, whereupon this Agreement shall become null and void and of Closing Date Common Stock Cash Consideration; providedno further force and effect and the parties hereto shall have no further obligation to one another. However, that any payment hereunder to be made in lieu of such immediate termination of this Agreement, Buyer may at its option notify the form of shares of Buyer Common Stock shall be made only in whole shares, Company and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated Seller in writing by of those matters as to which it has reasonable concerns and extend the Bank Due Diligence Period as to those items only for a period of an additional thirty (30) days in order to give the parties the opportunity to resolve such designation concerns. Buyer’s failure to be made at least two (2) Business Days prior terminate this Agreement pursuant to this Section 2.03 shall not affect Buyer’s right to require the Closing Date) an amount equal satisfaction of all conditions to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed closing set forth in accordance with the terms of the Escrow this Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers PSHS Seller shall deliver to the Buyer Purchaser: (i) certificates representing the SharesPSHS Partnership Interest, duly endorsed in blank to Purchaser or accompanied by stock partnership interest powers duly endorsed in blank to Purchaser, in proper form for transfer;, with appropriate stock transfer Tax stamps, if any, affixed, which, together with the certificates delivered to Purchaser by the PSHS Seller, shall represent 37.5% of the partnership interests of the Partnership outstanding as of the Closing Date; (ii) Noncompetition and Confidentiality Agreement executed by the PSHS Seller, and (iii) a certificate dated as of the Closing Date stating the PSHS Seller’s name, tax identifying number and address, stating that the PSHS Seller is not a “foreign person,” sworn to under penalties of perjury and otherwise in form and substance sufficient to satisfy the requirement of Treasury Regulation Section 1.1445-2(b)(2) (the “FIRPTA Certificate”).
(b) the Buyer Katzell Seller shall pay deliver to each Purchaser: (i) certificates representing the Katzell Partnership Interest, duly endorsed to Purchaser or accompanied by partnership interest powers duly endorsed to Purchaser, in proper form for transfer, with appropriate stock transfer Tax stamps, if any, affixed, which, together with the certificates delivered to Purchaser by the Katzell Seller, shall represent 9% of the partnership interests of the Partnership outstanding as of the Closing Date; (ii) Noncompetition and Confidentiality Agreement executed by the Katzell Seller, and (iii) a certificate dated as of the Closing Date stating the Katzell Seller’s name, tax identifying number and address, stating that the Katzell Seller is not a “foreign person,” sworn to under penalties of perjury and otherwise in form and substance sufficient to satisfy the requirement of Treasury Regulation Section 1.1445-2(b)(2) (the “FIRPTA Certificate”).
(c) the ▇▇▇▇▇▇ Seller shall deliver to Purchaser: (i) certificates representing the ▇▇▇▇▇▇ Partnership Interest, duly endorsed to Purchaser or accompanied by partnership interest powers duly endorsed to Purchaser, in proper form for transfer, with appropriate stock transfer Tax stamps, if any, affixed, which, together with the certificates delivered to Purchaser by the ▇▇▇▇▇▇ Seller, shall represent 9% of the partnership interests of the Partnership outstanding as of the Closing Date; (ii) Noncompetition and Confidentiality Agreement executed by the ▇▇▇▇▇▇ Seller, and (iii) a certificate dated as of the Closing Date stating the ▇▇▇▇▇▇ Seller’s name, tax identifying number and address, stating that the ▇▇▇▇▇▇ Seller is not a “foreign person,” sworn to under penalties of perjury and otherwise in form and substance sufficient to satisfy the requirement of Treasury Regulation Section 1.1445-2(b)(2) (the “FIRPTA Certificate”).
(d) the PBSA Seller shall deliver to Purchaser: (i) certificates representing the PBSA Partnership Interest, duly endorsed to Purchaser or accompanied by partnership interest powers duly endorsed to Purchaser, in proper form for transfer, with appropriate stock transfer Tax stamps, if any, affixed, which, together with the certificates delivered to Purchaser by the PBSA Seller, shall represent 12% of the partnership interests of the Partnership outstanding as of the Closing Date; (ii) Noncompetition and Confidentiality Agreement executed by the PBSA Seller, and (iii) a certificate dated as of the Closing Date stating the PBSA Seller’s name, tax identifying number and address, stating that the PBSA Seller is not a “foreign person,” sworn to under penalties of perjury and otherwise in form and substance sufficient to satisfy the requirement of Treasury Regulation Section 1.1445-2(b)(2) (the “FIRPTA Certificate”).
(e) Purchaser shall deliver to the PSHS Seller: (i) the Cash Purchase Price for the PSHS Seller, and (ii) a certificate representing the Purchaser Stock for the PSHS Seller issued to the PSHS Seller.
(f) Purchaser shall deliver to the Katzell Seller by wire transfer of immediately available funds to a such bank account of Bank of America designated in writing by each such the Katzell Seller (such designation to be made at least two three (23) Business Days business days prior to the Closing Date), ) the Cash Purchase Price for the Katzell Seller.
(g) Purchaser shall deliver to the ▇▇▇▇▇▇ Seller: (i) with respect to the Common Shares held by such Cash Purchase Price for the ▇▇▇▇▇▇ Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect a certificate representing the Purchaser Stock for the ▇▇▇▇▇▇ Seller issued to the Preferred Shares held by such ▇▇▇▇▇▇ Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;.
(ch) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer Purchaser shall deliver to the Bank PBSA Seller the Cash Purchase Price for the PBSA Seller.
(i) Purchaser shall: (i) deliver by wire transfer of immediately available funds to such bank account of the Equitable Bank designated in writing by the Bank PSHS Seller (such designation to be made at least two (2) Business Days three business days prior to the Closing Date) ), immediately available funds in an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Facility Amount, including any shares of Buyer Common Stock, if applicable, as shown on payoff letters obtained by the PSHS Seller from Equitable Bank and delivered to Purchaser at least one day prior to the Escrow Agent Closing Date is such amounts have not been paid off prior to be held and disbursed in accordance with the terms of the Escrow Agreement;
Closing Date; (fii) the Buyer shall deliver by wire transfer of immediately available funds to the applicable bank account account(s) designated in writing by the Sellers’ Representative (Partnership any other Indebtedness of the Partnership, if any, if such designation to be made at least two (2) Business Days amounts are not paid off prior to the Closing Date, if applicable and (iii) deliver payment to the applicable accounts designated therefore of all Transaction Expenses.
(j) If there are any other liens encumbering the partnership interests being purchased from any of the Sellers’ Representative Expenses Amount;
(g) , then the Buyer shall deliver by wire transfer attendant indebtedness needs to be identified and paid off prior to Closing, or alternatively, Purchaser will pay off such attendant indebtedness at the Closing and reduce the respective cash portions of immediately available funds the purchase price payable to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable LawsSeller(s).
Appears in 1 contract
Sources: Securities Purchase Agreement (Paincare Holdings Inc)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) the Sellers shall deliver to each Seller, his, her or its Pro Rata Percentage of the Buyer certificates representing Purchase Price, less the SharesEscrow Amount, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) and the Buyer shall pay to each Seller Adjustment Escrow Amount, by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least Buyer no later than two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(gii) pay, on behalf of the Company, to such account or accounts as the Company specifies to Buyer shall deliver pursuant to the Estimated Closing Statement, the aggregate amount of the Estimated Indebtedness;
(iii) deposit the Escrow Amount, and the Adjustment Escrow Amount with the Escrow Agent by wire transfer of immediately available funds funds, which will be held by the Escrow Agent in accordance with the terms of the Escrow Agreement to secure the indemnification obligations of Sellers hereunder and be available in connection with certain adjustments to the bank account designated in writing by Avista Capital PartnersPurchase Price under Section 2.05; and
(iv) deliver to the Company, LP (such designation the Transaction Documents and all other agreements, documents, instruments or certificates required to be made delivered by Buyer at least two (2) Business Days or prior to the Closing Datepursuant to Section 8.03 of this Agreement
(b) At the Closing, to the extent not previously delivered, each Seller shall deliver to Buyer:
(i) an amount equal assignment of the Purchased Interests held by such Seller to Buyer in the Management Feeform of Exhibit D hereto (the “Assignment”), as specified duly executed by the Company in accordance with Section 2.1(b);such Seller; and
(hii) the Buyer shall deliver by wire transfer of immediately available funds to one other Transaction Documents and all other agreements, documents, instruments or more bank accounts designated in writing by the Company (such designation certificates required to be made delivered by such Seller at least two (2) Business Days or prior to the Closing Date) amounts equal, in the aggregate, pursuant to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer 8.02 of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)this Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Crawford & Co)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers Principal Seller shall deliver to Purchaser:
(i) a certificate representing all Principal Shares held by the Buyer certificates representing the SharesPrincipal Seller, duly endorsed in blank or accompanied by a stock powers power duly endorsed in blank in proper form for transfer, with appropriate transfer tax stamps, if any, affixed;
(ii) each Minority Stock Purchase Agreement, duly executed by each Minority Stockholder;
(iii) duly signed resignations, effective immediately after the Closing, of all directors and officers of the Company;
(iv) a certificate of the Principal Seller, in form and substance satisfactory to Purchaser, certifying that the Acquisition is exempt from withholding pursuant to the Foreign Investment in Real Property Tax Act;
(v) a certificate, signed by each Minority Stockholder under penalty of perjury, stating that each Minority Stockholder is a stockholder of the company and chooses to make the Section 338(h)(10) election on IRS Form 8023; and
(vi) such other documents as Purchaser or its counsel may reasonably request to demonstrate satisfaction of the conditions and compliance with the covenants set forth in this Agreement.
(b) Purchaser shall deliver to the Buyer shall pay to each Seller Principal Seller:
(i) payment, by wire transfer of immediately available funds to a bank account designated in writing by each the Principal Seller (such Seller designation having been made at least two business days prior to the Closing Date), immediately available funds in an amount equal to (A) the difference between (I) the Cash Consideration and (II) the Escrowed Cash Consideration, plus (B) [REDACTED], such number being the product of (I) the Principal Seller’s pro rata ownership of the outstanding shares of the Company immediately prior to Closing and (II) an estimate as of the close of business on the Closing Date, prepared by the Company (and reasonably satisfactory to Purchaser) and having been delivered to Purchaser at least two business days prior to the Closing Date, of any adjustment to the Cash Consideration under Section 1.04 (the Cash Consideration plus or minus such estimate of any adjustment under Section 1.04 being hereinafter called the “Cash Closing Date Amount”); and
(ii) a certificate representing shares of Purchaser Common Stock (registered in the name of the Principal Seller) in an aggregate amount equal 233,683. The shares of Purchaser Common Stock delivered by Purchaser pursuant to this Section 1.03(b)(ii), together with the Cash Closing Date Amount, is hereinafter called the “Closing Date Amount”.
(c) Purchaser shall deliver to the Escrow Agent (i) payment, by wire transfer to a bank account designated in writing by the Escrow Agent (such designation to be made at least two (2) Business Days business days prior to the Closing Datedate), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available cash funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
Escrowed Cash Consideration and (eii) the Buyer shall deliver the Escrow Amount, including any a certificate representing shares of Buyer Purchaser Common Stock, if applicable, to Stock registered in the Escrow Agent to be held and disbursed in accordance with the terms name of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated Principal Seller and issued in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Escrowed Purchaser Stock Consideration.
Appears in 1 contract
Sources: Stock Purchase Agreement (Factset Research Systems Inc)
Transactions to be Effected at the Closing. At (a) Buyer shall perform the following actions at the Closing, the following transactions shall be effected by the parties:
(ai) Deliver to the Escrow Agent, in accordance with the Escrow Agreement, (A) in cash by wire transfer of immediately available funds, the cash portion of the Indemnification Escrow Amount plus (B) the Sellers shall deliver stock portion of the Indemnification Escrow Amount by book-entry transfer. The Indemnification Escrow Amount will be held in escrow and distributed in accordance with the terms of the Escrow Agreement. The Indemnification Escrow Amount will be available to satisfy the Buyer certificates representing the SharesSellers’, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transferOptionholders’ and SAR Holders’ indemnification obligations under this Agreement;
(bii) Deliver to the Company, for distribution to the Optionholders (or, with respect to the amount described in clause (B) below, for payment by the Company in accordance with its obligations described in clause (B)), in accordance with the Company’s payroll practices and applicable withholding, an amount in cash equal to (A) the Buyer shall pay aggregate amount (subject to applicable withholding Tax and less the cash portion of the Indemnification Escrow Amount allocable to each Seller such Optionholder) set forth opposite each Optionholder’s name on the Allocation Certificate upon execution of an Option Cancellation Agreement by such Optionholder, plus (B) an amount equal to the Company’s payroll tax and benefit plan obligations with respect to the amounts to be paid to the Optionholders.
(iii) Deliver to the Company, for distribution to the SAR Holders (or, with respect to the amount described in clause (B) below, for payment by the Company in accordance with its obligations described in clause (B)), in accordance with the Company’s payroll practices and applicable withholding, an amount in cash equal to (A) the aggregate amount (subject to applicable withholding Tax and less the cash portion of the Indemnification Escrow Amount allocable to each such Optionholder) set forth opposite each SAR Holder’s name on the Allocation Certificate upon execution of an SAR Cancellation Agreement by such SAR Holder, plus (B) an amount equal to the Company’s payroll tax and benefit plan obligations with respect to the amounts to be paid to the SAR Holders.
(iv) Deliver the balance of the cash portion of the Purchase Price, after taking into account the payments set forth in clauses (i) through (iii) of this 2.03, to the Paying Agent for the benefit of the Sellers in cash by wire transfer of immediately available funds to a bank an account designated in writing to the Buyer by each such Seller (such designation to be made the Sellers’ Representative at least two (2) Business Days prior to the Closing Date)Closing; and
(v) Deliver the balance of the Stock Consideration by book-entry transfer, after taking into account the delivery of the stock portion of the Indemnification Escrow Amount set forth in clause (i) of this 2.03, to the Sellers; and
(vi) Execute and deliver to the Sellers’ Representative the Transaction Documents and all other agreements, documents, instruments or certificates required to be executed and delivered by Buyer at or before the Closing pursuant to 8.03 of this Agreement.
(b) Each Seller shall perform the following actions at or prior to the Closing:
(i) Execute and deliver to the Company share transfer forms with respect to the Common all Shares held by such SellerSeller in favor of the Buyer, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing together with any certificates held in accordance with Section 2.1(b)) and connection thereto;
(ii) with respect cause the Company to deliver to Buyer a certified copy of the Preferred Shares held by such SellerCompany’s register of members, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) showing the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares holder of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence all of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole shareShares; and
(diii) the Buyer shall Execute and deliver to Buyer the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation Transaction Documents and all other agreements, documents, instruments or certificates required to be made executed and delivered by such Seller at least two (2) Business Days prior to or before the Closing Date) an amount equal pursuant to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares 8.02 of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow this Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer will:
(ai) pay the Sellers shall deliver Closing Payment, subject to any adjustment pursuant to Section 2.5(a)(ii), to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
Sellers’ Representative (b) the Buyer shall pay to each Seller by wire transfer of immediately available funds in U.S. dollars to a bank an account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing specified by the Sellers’ Representative to the Buyer no later than the Business Day prior to the Closing);
(ii) deliver to the Sellers’ Representative, for the benefit of the Sellers, the Seller Note, duly executed by the Buyer, in the principal amount equal to the Aggregate Note Amount, with each such designation Seller entitled to that portion of the principal amount equal to the amount set forth opposite such Seller’s name on Schedule B (each such Seller’s amount as compared to the aggregate principal under all Sellers Notes, expressed as a percentage, is hereinafter referred to as each “Pro-Rata Share”);
(iii) deliver to the Sellers all other documents, instruments or certificates required to be made delivered by the Buyer at least two (2) Business Days or prior to the Closing Datepursuant to Section 7.2 of this Agreement.
(b) At the Closing, each Seller will deliver to the Buyer:
(i) an instrument of assignment or other instrument of transfer, in a form acceptable to the Buyer, duly executed as necessary by such Seller for transfer and sale of such Interests to the Buyer, free and clear of all Liens;
(ii) unless otherwise requested by the Buyer, a resignation and release from each officer of the Acquired Company and a resignation and release from BA Acquisitions, LLC, the sole manager of the Acquired Company; and
(iii) all other documents, instruments or certificates required to be delivered by such Seller at or prior to the Closing pursuant to Section 7.1 of this Agreement.
(c) Following receipt of the Closing Payment from the Buyer pursuant to Section 2.3(a)(i), the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds distribute to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) each Seller an amount equal to the Management Fee, as specified such Seller’s Pro-Rata Share multiplied by the Company in accordance with Closing Payment. Except for the Buyer’s obligation to remit the Closing Payment pursuant to Section 2.1(b2.3(a)(i);
(h) , the Buyer shall deliver by wire transfer of immediately available funds to one have no obligation or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior liability to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations Sellers with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Lawsdistribution of the Closing Payment under this Section 2.3(c).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Amneal Pharmaceuticals, Inc.)
Transactions to be Effected at the Closing. (a) At the Closing, all of the following transactions existing and outstanding Funded Indebtedness shall be effected by the parties:
(a) the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed repaid in blank or accompanied by stock powers duly endorsed full in blank in proper form for transfer;accordance with Section 1.03(c)(i).
(b) Subject to the Buyer terms and conditions of this Agreement, at the Closing, Sellers and the Company shall pay deliver or cause to each Seller be delivered to Purchaser all of the documents required to be delivered by them pursuant to Article VI.
(c) At the Closing, Purchaser shall make the following payments to the following recipients:
(i) on behalf of the Company, payment of the amount of the Funded Indebtedness by wire transfer of immediately available funds to a bank an account or accounts of the applicable payees thereof designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and Payoff Letters;
(ii) with respect to on behalf of Sellers or the Preferred Shares held by such SellerCompany, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stockapplicable, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence payment of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder Seller Transaction Expenses required to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank paid at or around Closing by wire transfer of immediately available funds to such bank an account or accounts of the Bank applicable payees thereof, as designated in writing by the Bank Closing Consideration Certificate (such designation it being understood that Sellers’ Representative may elect for a portion of the Seller Transaction Expenses to be made at least two (2) Business Days prior to the Closing Date) deposited in an amount equal to the Credit Agreement Outstanding Payoff Amountaccount under its control for further disbursement by Sellers’ Representative);
(eiii) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms payment of the Escrow Agreement;
(f) the Buyer shall deliver Group B Sellers Closing Payment by wire transfer of immediately available funds to for deposit into the bank account designated in writing by the Sellers’ Representative (such designation subject to Section 1.03(d), to be made at least two distributed to Group B Sellers in accordance with their Group B Pro Rata Shares);
(2iv) Business Days prior to payment of the Group A Sellers Closing Date) Payment by wire transfer or immediately available funds for deposit into the account designated by Sellers’ Representative Expenses Amount;(subject to Section 1.03(d), to be distributed to Group A Sellers in accordance with their Group A Pro Rata Shares); and
(gv) payment of the Buyer shall deliver Minority Reorganization Payment by wire transfer of immediately available funds for deposit into the accounts designated by the Company for the account of the Minority Subsidiary Investors.
(d) Notwithstanding anything to the bank account designated contrary contained herein (including any requirement that any amount shall be paid in writing by Avista Capital Partnersaccordance with the Pro Rata Shares of Sellers), LP (such designation Sellers’ Representative may adjust any payment to be distributed to Sellers at Closing in accordance with this Agreement to allocate (i) the Group A Sellers Closing Payment and the Group B Sellers Closing Payment among Sellers in a manner that compensates Sellers that did not receive any distributions made at least two (2) Business Days by the Company on a non-pro rata basis prior to the Closing DateDate under the Organizational Documents of the Company, including Sections 4.1(b)(i) an amount equal to the Management Fee, as specified by and 4.1(b)(ii) of the Company in accordance with Section 2.1(b);
(h) Operating Agreement, for the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by distribution such Sellers would have received had they been made on a pro rata basis under the Company Operating Agreement, (such designation to be made at least two (2ii) Business Days prior to the Closing Date) amounts equal, in the aggregate, to responsibility for any of the Seller Transaction Expenses, as specified and (iii) the economic impact of the Closing Bonuses and the Closing Bonus Taxes, in any manner Sellers’ Representative may determine in its sole discretion (it being understood by Sellers that any such expenses may be allocated among Sellers in a disproportionate manner). Any allocation of the Company Group A Sellers Closing Payment, the Group B Sellers Closing Payment, the Seller Transaction Expenses, the Closing Bonuses and the Closing Bonus Taxes, in accordance with this Section 2.1(b); and1.03(d) shall be reflected in the Closing Consideration Certificate delivered pursuant to Section 1.05.
(ie) Subject to the Buyer terms and conditions of this Agreement, at the Closing, Purchaser shall deliver or cause to be delivered to Sellers’ Representative all of the documents required to be delivered by wire transfer Purchaser pursuant to Section 6.03.
(f) Each Seller hereby agrees to the allocation of immediately available funds the Closing Cash Consideration, the Adjustment Amount (if any), the Deferred Payment Holdback Amount, the Contingent Consideration (if any) and the Brand Sale Consideration (if any) contemplated in this Agreement (including in the Closing Consideration Certificate), and each Seller forever waives and relinquishes any and all rights to one have the Closing Cash Consideration, the Adjustment Amount (if any), the Deferred Payment Holdback Amount, the Contingent Consideration (if any), and the Brand Sale Consideration (if any) allocated or more bank accounts designated calculated in writing by any other manner, whether pursuant to any provision of the Company (Operating Agreement or any other Contract with, or for the benefit of, such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (Seller. Purchaser and the Company shall timely remit all applicable withholding obligations be entitled to rely solely on Exhibit A and the Closing Consideration Certificate with respect to such Transaction Bonuses the amounts allocated and payable to Sellers or the proper third parties other payees set forth thereon. Neither Purchaser nor the Company shall be liable for any damages to any Person, including any Seller, for any inaccuracy, error or omission in accordance with all applicable Laws)Exhibit A or the Closing Consideration Certificate, or any action taken in reliance thereon.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Cheesecake Factory Inc)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) deliver to Sellers: (A) in accordance with the allocations set forth in Schedule 1 attached hereto, the cash portion of the Closing Date Payment by wire transfer of immediately available funds to accounts designated in writing by Sellers’ Representative to Buyer no later than two Business Days prior to the Closing Date; (B) the shares of AgEagle Stock referred to in Section 2.02(a)(ii), in book entry form, to each Seller in the amounts set forth opposite each Seller’s name on Schedule 1 attached hereto; provided that, the Company shall have up to five (5) Business Days following the Closing Date to deliver confirmation of the issuance of such shares of AgEagle Stock; and (C) the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Section 2.03(b);
(ii) pay, on behalf of the Company or Sellers, the following amounts: (A) Indebtedness of the Company to be paid at Closing, by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Indebtedness Certificate; and (B) any Transaction Expenses unpaid at Closing, by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Transaction Expenses Certificate; provided, that, the Buyer shall wire transfer $190,504.15 to Silicon Valley Bank representing the outstanding amount of the Paycheck Protection Program Loan previously obtained by the Company (the “PPP Loan”), which amount shall be held in escrow in accordance with Section 2.03(b)(v) below;
(iii) deliver to the Sellers’ Representative a duly executed certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, delivery and performance of this Agreement and the Ancillary 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;
(iv) deliver to the Sellers’ Representative a duly executed certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, the Ancillary Documents and the other documents to be delivered hereunder and thereunder; and
(v) deliver to Sellers the Ancillary Documents and all other agreements, documents, instruments or certificates as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement shall be delivered by Sellers at or prior to the Closing.
(b) At the Closing, Sellers or Sellers’ Representative shall deliver to the Buyer Buyer:
(i) stock certificates representing evidencing the Shares, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly endorsed executed in blank in proper form for transferblank, with all required stock transfer tax stamps affixed thereto;
(bii) executed counterparts of all approvals, consents and waivers that are listed on Section 3.05 of the Disclosure Schedules;
(iii) duly executed resignations of the directors and officers of the Company requested by Buyer pursuant to Section 5.01;
(iv) the Buyer shall pay Estimated Closing Working Capital Statement contemplated in Section 2.04(a)(ii);
(v) a duly executed escrow agreement between Sellers’ Representative and Silicon Valley Bank, the Company’s PPP Loan lender, which escrows for the benefit of the Sellers an amount equal to $190,504.15, representing the outstanding PPP Loan received by the Company, with the amount to be released at such time, and conditional upon, the PPP Loan having been forgiven by the U.S. Small Business Administration (or applicable lender thereof) and no further amounts are due thereunder;
(vi) a good standing certificate (or its equivalent) for the Company from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which the Company is organized;
(vii) a duly executed certificate pursuant to Treasury Regulations Section 1.1445-2(b) that no Seller is a foreign person within the meaning of Section 1445 of the Code;
(viii) a duly executed certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Sellers’ Representative certifying that attached thereto are true and complete copies of all resolutions adopted by the boards of directors (or equivalent governing body) of each Seller by wire transfer authorizing the execution, delivery and performance of immediately available funds this Agreement and the Ancillary 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;
(ix) a duly executed certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Sellers’ Representative certifying the names and signatures of the officers of each Seller authorized to a bank account designated in writing by each such Seller (such designation sign this Agreement, the Ancillary Documents and the other documents to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of delivered hereunder and thereunder; and
(x) the Per Common Share Closing Date Cash ConsiderationAncillary Documents and all other agreements, if anydocuments, multiplied instruments or certificates as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by (y) the Common Shares outstanding on the Closing Date owned this Agreement shall be delivered by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated Sellers at or prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (AgEagle Aerial Systems Inc.)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected Buyer will (i) pay to the Person(s) identified by the parties:
(a) the Sellers shall deliver to the Buyer certificates representing in writing prior to the SharesClosing, duly endorsed in blank or accompanied the amounts next to such Person’s name which such amounts represent all indebtedness of the Companies for borrowed money, (ii) pay to each of the Sellers their pro rata portion of the difference between the cash portion of the Aggregate Purchase Price less the amounts paid pursuant to subsection 2.4(a)(i) above, by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay paying such sum to each Seller by wire transfer of immediately available funds in accordance with the instructions provided by the Sellers to a bank account designated the Buyer in writing prior to the Closing, (iii) issue to each of the Sellers their pro rata portion of the Holdings Shares, by causing Holdings’ transfer agent to issue to each Seller the number of Holdings Shares set forth for such Seller on Schedule A, and (such designation iv) deliver to the Sellers all other documents, instruments or certificates required to be made delivered by the Buyer at least two (2) Business Days or prior to the Closing Date)pursuant to this Agreement.
(b) At the Closing, (i) with respect the Sellers will deliver to the Common Shares held Buyer a certificate or certificates representing the Interests, if certificated, duly endorsed or accompanied by such Sellermembership interest powers duly endorsed in blank, the product of (xii) the Per Common Share Closing Date Cash Consideration, if any, multiplied by Sellers will execute and deliver an amended and restated limited liability company operating agreement for each of the Companies that shows the Buyer as the owner of 100% of the Interests of each of the Companies and (yii) the Common Shares outstanding on Sellers will deliver to the Closing Date owned Buyer all other documents, instruments or certificates required to be delivered by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated Sellers at or prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect pursuant to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow this Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (1847 Holdings LLC)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the partiesParties:
(a) the Sellers The Purchaser shall deliver deliver, or cause to be delivered:
(i) to the Buyer certificates representing the SharesSeller, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such the Seller (such designation to be made at least two five (25) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior a dollar amount equal to the Closing in accordance with Section 2.1(b)) and Cash Consideration;
(ii) with respect to the Preferred Shares held by such SellerEscrow Agent, (A) for deposit in the Adjustment Escrow Account, the product of Adjustment Escrow Amount and (xB) for deposit in the Per Preferred Share Cash Consideration multiplied by (y) Indemnity Escrow Account, the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached heretoIndemnity Escrow Amount;
(ciii) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product Seller and the Escrow Agent, a duly executed copy of the Escrow Agreement;
(xiv) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b))Seller, less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence a duly executed copy of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole shareRegistration Rights Agreement; and
(dv) the Buyer shall deliver to the Bank Seller, the certificate required to be delivered by wire transfer of immediately available funds the Purchaser pursuant to such bank account Section 8.3(c).
(b) The Purchaser shall pay, or cause to be paid, on behalf of the Bank designated in writing by Seller and the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow AmountCompany Group, including any shares of Buyer Common Stock, if as applicable, to the Escrow Agent to be held and disbursed all Company Payoff Indebtedness in accordance with the terms of the Payoff Letters relating to such Company Payoff Indebtedness. The Parties acknowledge that the Company Payoff Indebtedness are obligations of the Seller, incurred on or before the Closing Date, and nothing in this Agreement shall be deemed to make them obligations of the Purchaser. Payment of such Company Payoff Indebtedness by the Purchaser (whether directly or indirectly) or any of its Affiliates on behalf of the Seller on the Closing Date is being made for convenience only.
(c) The Seller shall deliver, or cause to be delivered, to the Purchaser:
(i) to the extent that the Company Shares are in certificated form, stock certificates evidencing the Company Shares, free and clear of all Liens, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, and to the extent that the Company Shares are not in certificated form, deliver to the Purchaser stock powers or other instruments of transfer duly executed in form for transfer, free and clear of Liens, with respect to the Company Shares and such other documentation as is reasonably required to transfer the Company Shares in full to Purchaser;
(ii) each of the certificates required to be delivered by the Seller or the Company pursuant to Section 8.2(d);
(iii) a copy of the Registration Rights Agreement duly executed by the Seller;
(iv) a duly executed copy of the Escrow Agreement;
(fv) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amounta duly executed IRS Form W-9;
(gvi) the Buyer shall deliver by wire transfer Payoff Letter together with all applicable documents reasonably necessary to evidence the discharge and termination of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company Payoff Indebtedness and the release and termination of all Liens on the respective assets and equity interests of each member of the Company Group and any guarantees in accordance with Section 2.1(b)respect of such Company Payoff Indebtedness;
(hvii) the Buyer shall deliver by wire transfer duly executed resignations or removals required under Section 6.8;
(viii) the duly executed termination agreements of immediately available funds to one or more bank accounts designated in writing by employment agreements with the Company (such designation to be made at least two (2with those individuals set forth on Section 2.7(c)(vii) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by of the Company in accordance with Section 2.1(b)Disclosure Letter; and
(iix) copies of the Buyer shall deliver by wire transfer fully bound “tail” insurance policies obtained pursuant to Section 7.13(b) and Section 7.14 (if any), together with evidence of immediately available funds to one or more bank accounts designated in writing by their effectiveness from and after the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Motorola Solutions, Inc.)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) the Sellers shall deliver to the Buyer certificates representing the Sharesdeliver, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation cause to be made at least two delivered, to Seller the Estimated Initial Purchase Price less the Cash Escrow Amount (2) Business Days prior to the “Closing DateConsideration”), (i) with respect to the Common Shares held by such Seller, the product $40,000,000 of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only paid in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver cash by wire transfer of immediately available funds to the bank Seller Bank Account and the remainder of the Closing Consideration shall be paid by delivery of a demand promissory note made by Buyer in favor of Seller (the “Demand Note”) in the amount of such remainder;
(ii) deposit the Cash Escrow Amount with the Escrow Agent to be kept in a segregate interest bearing account (the “Cash Escrow Account”) designated in writing by the Sellers’ Representative Escrow Agent pursuant to the Escrow Agreement;
(such designation iii) pay, or cause to be made paid, on behalf of the Acquired Companies, the Company Transaction Expenses for which Buyer has received payoff letters pursuant to Section 6.01(d) by wire transfer of immediately available funds in accordance with such letters;
(iv) repay, or cause to be repaid, on behalf of the Acquired Companies, all amounts necessary to discharge fully the then outstanding balance of all Closing Repaid Indebtedness, by wire transfer of immediately available funds in accordance with the Payoff Letters; and
(v) deliver, or cause to be delivered, to Seller all other agreements, documents, instruments or certificates required to be delivered by Buyer at least two (2) Business Days or prior to the Closing Datepursuant to Section 6.02 of this Agreement.
(b) At the Sellers’ Representative Expenses AmountClosing, Seller shall:
(i) deliver, or cause to be delivered, to Buyer to the extent certificated, certificate(s) evidencing the Interests, free and clear of all Encumbrances, duly endorsed in blank or accompanied by membership interest transfer powers, stock powers or other instruments of transfer duly executed in blank;
(gii) deliver, or cause to be delivered, to Buyer the original Majestic Promissory Note stamped “cancelled”;
(iii) (A) commit to lend $15 million in cash to Credit Logistics pursuant to the terms of the Buyer Debt Facility Agreement, and (B) lend its pro rata share of the Loans at the Closing pursuant to the terms thereof; and
(iv) all other agreements, documents, instruments or certificates required to be delivered by Seller at or prior to the Closing pursuant to Section 6.01 of this Agreement.
(a) Immediately following the Closing, Buyer shall deliver pay an amount equal to the principal amount of the Demand Note by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Bank Account.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (CompuCredit Holdings Corp)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) At the Sellers closing, the Purchaser shall deliver to the Buyer Vendor:
(i) share certificates or Direct Registration System Advices representing such number of HITI Shares as is equal to the Equity Amount, free and clear of all Encumbrances, with each HITI Share having a price equal to the 10-day volume weighted average trading price of the HITI Shares on the Canadian Securities Exchange immediately prior to the Closing Date;
(ii) a certificate representing the Convertible Debenture in the principal amount of the Vendor Loans;
(iii) a mutual release, by and among the Vendor, the Corporation, the Purchaser, and such other persons as the Purchaser may reasonably request, substantially in the form attached hereto as Schedule “A” duly executed by the Purchaser;
(iv) a share pledge agreement, in the form attached as Schedule “B” (the “Share Pledge Agreement”), duly executed by the Purchaser, pursuant to which the Purchaser will pledge all of its rights and interest in the Shares held by the Purchaser upon completion of the transactions contemplated hereby, as security for the obligations of the Purchaser to the Vendor pursuant to the Convertible Debenture;
(v) a general security agreement, in the form attached as Schedule “C” (the “General Security Agreement”), duly executed by the Corporation, pursuant to which the Corporation will grant a security interest in the assets of the Corporation, as security for the obligations of the Purchaser to the Vendor pursuant to the Convertible Debenture;
(vi) an assignment of debt agreement, in the form attached as Schedule “D” (the “Debt Assignment Agreement”), duly executed by the Purchaser and the Corporation, pursuant to which the Purchaser will assign to the Vendor its rights and interest in certain debts owed to the Purchaser by the Corporation in respect of certain loans advanced by the Purchaser to the Corporation, as security for the obligations of the Purchaser to the Vendor pursuant to the Convertible Debenture;
(vii) resignations and releases, in the form attached as Schedule “E” (together, the “Resignations and Releases”), duly executed by each of the directors and/or officers of the Corporation listed in Schedule “F” (together, the “Outgoing Directors and Officers”);
(viii) an agreement to terminate the Unanimous Shareholders Agreement, in the form attached as Schedule “I” (the “USA Termination Agreement”), duly executed by the Purchaser and the Corporation; and
(ix) all other agreements, documents, instruments or certificates required to be delivered by the Purchaser under this Agreement.
(b) At the closing, the Vendor shall deliver to the Purchaser:
(i) share certificates representing the Minority Shares, free and clear of all Encumbrances, duly endorsed in blank for transfer, or accompanied by stock irrevocable security transfer powers of attorney duly endorsed executed in blank blank, in proper form for transfereither case by the holders of record, together with evidence satisfactory to the Purchaser that the Purchaser or its nominee(s) have been entered upon the books of the Corporation as the holder of the Purchased Shares;
(bii) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated subscription agreement, substantially in writing by each such Seller the form attached hereto as Schedule “G” (such designation to be made at least two (2) Business Days prior to the Closing Date“Subscription Agreement”), (i) properly completed and executed with respect to the Common HITI Shares held by such Seller, and the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may Convertible Debenture to be updated prior issued to the Closing in accordance with Vendor pursuant to Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto2.02;
(ciii) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stocknon-competition agreement, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made substantially in the form of shares of Buyer Common Stock shall be made only in whole sharesattached hereto as Schedule “H” (the “Non-Compete Agreement”) duly executed by the Vendor and such other persons as the Purchaser may reasonably request;
(iv) a mutual release, by and among the Vendor, the Corporation, the Purchaser, and any fractional shares shall be rounded up to such other persons as the nearest whole sharePurchaser may reasonably request; substantially in the form attached hereto as Schedule “A” duly executed by the Vendor and the Corporation and such other persons as the Purchaser may reasonably request;
(v) the USA Termination Agreement, duly executed by the Vendor and the Corporation; and
(dvi) the Buyer shall deliver all other agreements, documents, instruments or certificates required to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing be delivered by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Vendor under this Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers PSHS Seller shall deliver to the Buyer Purchaser: (i) certificates representing the SharesPSHS Partnership Interest, duly endorsed in blank to Purchaser or accompanied by stock partnership interest powers duly endorsed in blank to Purchaser, in proper form for transfer;, with appropriate stock transfer Tax stamps, if any, affixed, which, together with the certificates delivered to Purchaser by the PSHS Seller, shall represent 48 % of the partnership interests of the Partnership outstanding as of the Closing Date; (ii) Noncompetition and Confidentiality Agreement executed by the PSHS Seller, (iii) a certificate dated as of the Closing Date stating the PSHS Seller’s name, tax identifying number and address, stating that the PSHS Seller is not a “foreign person,” sworn to under penalties of perjury and otherwise in form and substance sufficient to satisfy the requirement of Treasury Regulation Section 1.1445-2(b)(2) (the “FIRPTA Certificate”) , and (iv) the Limited Partnership Interest Pledge Agreement for the PSHS Seller ..
(b) the Buyer ▇▇▇▇▇▇▇▇▇▇ Seller shall pay deliver to each Purchaser: (i) certificates representing the ▇▇▇▇▇▇▇▇▇▇ Partnership Interest, duly endorsed to Purchaser or accompanied by partnership interest powers duly endorsed to Purchaser, in proper form for transfer, with appropriate stock transfer Tax stamps, if any, affixed, which, together with the certificates delivered to Purchaser by the ▇▇▇▇▇▇▇▇▇▇ Seller, shall represent 10% of the partnership interests of the Partnership outstanding as of the Closing Date; (ii) Noncompetition and Confidentiality Agreement executed by the ▇▇▇▇▇▇▇▇▇▇ Seller, (iii) a certificate dated as of the Closing Date stating the ▇▇▇▇▇▇▇▇▇▇ Seller’s name, tax identifying number and address, stating that the ▇▇▇▇▇▇▇▇▇▇ Seller is not a “foreign person,” sworn to under penalties of perjury and otherwise in form and substance sufficient to satisfy the requirement of Treasury Regulation Section 1.1445-2(b)(2) (the “FIRPTA Certificate”) , and (iv) the Limited Partnership Interest Pledge Agreement for the ▇▇▇▇▇▇▇▇▇▇ Seller ..
(c) the ▇▇▇▇▇ Seller shall deliver to Purchaser: (i) certificates representing the ▇▇▇▇▇ Partnership Interest, duly endorsed to Purchaser or accompanied by partnership interest powers duly endorsed to Purchaser, in proper form for transfer, with appropriate stock transfer Tax stamps, if any, affixed, which, together with the certificates delivered to Purchaser by the ▇▇▇▇▇ Seller, shall represent 10 % of the partnership interests of the Partnership outstanding as of the Closing Date; (ii) Noncompetition and Confidentiality Agreement executed by the ▇▇▇▇▇ Seller, and (iii) a certificate dated as of the Closing Date stating the ▇▇▇▇▇ Seller’s name, tax identifying number and address, stating that the ▇▇▇▇▇ Seller is not a “foreign person,” sworn to under penalties of perjury and otherwise in form and substance sufficient to satisfy the requirement of Treasury Regulation Section 1.1445-2(b)(2) (the “FIRPTA Certificate”).
(d) the ▇▇▇▇▇▇▇ Seller shall deliver to Purchaser: (i) certificates representing the ▇▇▇▇▇▇▇ Partnership Interest, duly endorsed to Purchaser or accompanied by partnership interest powers duly endorsed to Purchaser, in proper form for transfer, with appropriate stock transfer Tax stamps, if any, affixed, which, together with the certificates delivered to Purchaser by the ▇▇▇▇▇▇▇ Seller, shall represent 2% of the partnership interests of the Partnership outstanding as of the Closing Date; (ii) Noncompetition and Confidentiality Agreement executed by the ▇▇▇▇▇▇▇ Seller, and (iii) a certificate dated as of the Closing Date stating the ▇▇▇▇▇▇▇ Seller’s name, tax identifying number and address, stating that the ▇▇▇▇▇▇▇ Seller is not a “foreign person,” sworn to under penalties of perjury and otherwise in form and substance sufficient to satisfy the requirement of Treasury Regulation Section 1.1445-2(b)(2) (the “FIRPTA Certificate”).
(e) the Corces Seller shall deliver to Purchaser: (i) certificates representing the Corces Partnership Interest, duly endorsed to Purchaser or accompanied by partnership interest powers duly endorsed to Purchaser, in proper form for transfer, with appropriate stock transfer Tax stamps, if any, affixed, which, together with the certificates delivered to Purchaser by the Corces Seller, shall represent 3% of the partnership interests of the Partnership outstanding as of the Closing Date; (ii) Noncompetition and Confidentiality Agreement executed by the Corces Seller, and (iii) a certificate dated as of the Closing Date stating the Corces Seller’s name, tax identifying number and address, stating that the Corces Seller is not a “foreign person,” sworn to under penalties of perjury and otherwise in form and substance sufficient to satisfy the requirement of Treasury Regulation Section 1.1445-2(b)(2) (the “FIRPTA Certificate”).
(f) Purchaser shall deliver to the PSHS Seller: (i) the Cash Purchase Price for the PSHS Seller, (ii) a certificate representing the Purchaser Stock for the PSHS Seller issued to the PSHS Seller , (iii) the Promissory Note for the PSHS Seller, and (iv) the Limited Partnership Interest Pledge Agreement for the PSHS Seller ..
(g) Purchaser shall deliver to the ▇▇▇▇▇▇▇▇▇▇ Seller : (i) the Cash Purchase Price for the ▇▇▇▇▇▇▇▇▇▇ Seller , (ii) Stock for the ▇▇▇▇▇▇▇▇▇▇ Seller, (iii) the Promissory Note for the ▇▇▇▇▇▇▇▇▇▇ Seller, and (iv) the Limited Partnership Interest Pledge Agreement for the ▇▇▇▇▇▇▇▇▇▇ Seller ..
(h) Purchaser shall deliver to the ▇▇▇▇▇ Seller: the Cash Purchase Price for the ▇▇▇▇▇ Seller .
(i) Purchaser shall deliver to the ▇▇▇▇▇▇▇ Seller the Cash Purchase Price for the ▇▇▇▇▇▇▇ Seller.
(j) Purchaser shall deliver to the Corces Seller the Cash Purchase Price for the Corces Seller. Purchaser shall: (i) deliver by wire transfer of immediately available funds to a the applicable bank account account(s) designated in writing by each the Partnership any other Indebtedness of the Partnership, if any, if such Seller (such designation to be made at least two (2) Business Days amounts are not paid off prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) applicable and (ii) with respect deliver payment to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank applicable accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller therefore of all Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Sources: Securities Purchase Agreement (Paincare Holdings Inc)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers Purchaser shall deliver to Seller, and Seller shall accept on behalf of itself and the Buyer certificates representing the SharesSelling Affiliates, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller payment by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, an amount equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Initial Closing Date owned Amount, except as required by such Seller as listed on Schedule 4.5(a) attached hereto applicable Law, in which case Purchaser or an Affiliate of Purchaser shall pay the applicable Selling Affiliate the applicable portion of the Initial Closing Date Amount (as allocated pursuant to Section 5.07(g) or otherwise agreed by the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(dparties) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of in local currency, at the Bank designated in writing then prevailing spot currency exchange rate as published by the Bank (such designation to be made at least two (2) Wall Street Journal on the Business Days Day prior to the Closing Date;
(b) an amount equal Seller shall deliver (or cause the Selling Affiliates to deliver) to Purchaser any certificates representing any certificated Transferred Equity Interests and customary instruments of transfer and assignment of the Credit Agreement Outstanding Payoff AmountTransferred Equity Interests, in form and substance reasonably satisfactory to Purchaser, duly executed by Seller or the applicable Selling Affiliate;
(c) Seller shall deliver to Purchaser the certificate required to be delivered pursuant to Section 6.02(d);
(d) Purchaser shall deliver to Seller the certificate required to be delivered pursuant to Section 6.03(c);
(e) the Buyer Seller shall deliver to Purchaser the Escrow AmountTransition Services Agreement, including any shares of Buyer Common Stocksubstantially in the form attached hereto as Exhibit B (the “Transition Services Agreement”), if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreementduly executed by Seller;
(f) the Buyer Purchaser shall deliver to Seller the Transition Services Agreement, duly executed by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses AmountPurchaser;
(g) the Buyer Seller shall deliver to Purchaser the Trademark License Agreement, substantially in the form attached hereto as Exhibit C (the “Trademark License Agreement”), duly executed by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b)Seller;
(h) the Buyer Purchaser shall deliver to Seller the Trademark License Agreement, duly executed by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b)Purchaser; and
(i) the Buyer Seller shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by Purchaser the Company (such designation certificates required to be made at least two (2) Business Days prior delivered pursuant to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable LawsSection 5.07(g).
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the ClosingClosing (and in any event on the Closing Date), the following transactions shall be effected by the partiesBuyer shall:
(ai) the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller by wire transfer of immediately available funds the applicable Pro Rata Share of the Closing Cash Consideration less the applicable Pro Rata Share of the Holdback Cash Amount to a each Seller in accordance with Section 2.01(a) and to the applicable bank account designated in writing by each such Seller (such designation to be made at least two three (23) Business Days prior to the Closing Date(the “Sellers' Bank Accounts”). Receipt of such sum in the Seller Bank Accounts shall be a good and valid discharge by Buyer of its obligation to make such payments;
(ii) deliver a letter of instruction, (i) with respect to in form and substance as reasonably approved by the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated Sellers' Representative prior to the Closing, to Buyer's transfer agent irrevocably instructing the transfer agent to issue to each Seller, in book-entry form, the applicable Pro Rata Share of the Closing Stock Consideration less the applicable Pro Rata Share of the Holdback Shares in accordance with Section 2.1(b)2.01(a) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b"Instruction Letter"); and
(iiii) deliver to Sellers the Buyer shall deliver by wire transfer of immediately available funds to one Ancillary Documents and all other agreements, documents, instruments or more bank accounts designated in writing by the Company (such designation certificates required to be made delivered by Buyer at least two (2) Business Days or prior to the Closing Datepursuant to Section 8.03 of this Agreement.
(b) amounts equal, in At the aggregate, to the Transaction Bonuses Closing (and in any event on the Company shall timely remit Closing Date), Sellers shall:
(i) deliver (A) the share certificates evidencing the Shares, free and clear of all applicable withholding obligations Encumbrances; (B) stock transfer forms with respect to such Transaction Bonuses the Shares, duly executed and (C) an irrevocable power of attorney in form and substance as reasonably approved by Buyer and the Sellers' Representative without delay prior to the proper third parties Closing, executed by each Seller in accordance with favor of Buyer in respect of the rights attaching to the Company Shares; and
(ii) deliver the Ancillary Documents and all applicable Laws)other agreements, documents, instruments or certificates required to be delivered by Sellers at or prior to the Closing pursuant to Section 8.02 of this Agreement.
Appears in 1 contract
Sources: Share Purchase Agreement (Super League Gaming, Inc.)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions Buyer shall be effected by the partiesdeliver to Seller:
(ai) The Cash Consideration, subject to any Closing Adjustment pursuant to Section 2.04(a), by wire transfer of immediately available funds to an account of Seller designated in writing by Seller to Buyer no later than five (5) Business Days prior to the Closing Date minus Seventeen Million Five Hundred Thousand Dollars ($17,500,000) (the “Holdback Escrow Fund”). The Holdback Escrow Fund shall be held in escrow pursuant to Section 2.05 of this Agreement and the terms and conditions of an escrow agreement substantially in the form attached hereto as Exhibit A (the “Escrow Agreement”);
(ii) stock certificates evidencing the Stock Consideration; and
(iii) the Sellers Transaction Documents and all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Section 7.03 of this Agreement.
(b) At the Closing, Seller shall deliver to the Buyer Buyer:
(i) stock certificates representing evidencing the Shares, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly endorsed executed in blank in proper form for transferand substance reasonably satisfactory to Buyer, with all required stock transfer tax stamps affixed thereto;
(bii) the Buyer shall pay to each Seller Closing Cash Deficiency (as provided in Section 2.04(a) below), if any, by wire transfer of immediately available funds to a bank an account designated in writing by each such Seller (such designation to be made at least Buyer no later than two (2) Business Days prior to the Closing Date), ; and
(i) with respect to the Common Shares held by such Seller, the product of (xiii) the Per Common Share Closing Date Cash ConsiderationTransaction Documents and all other agreements, if anydocuments, multiplied instruments or certificates required to be delivered by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated at or prior to the Closing in accordance with pursuant to Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product 7.02 of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;this Agreement.
(c) Except for the Indebtedness identified in Exhibit B attached hereto, for which payoff letters will be delivered to Buyer pursuant to Section 7.02(l) below, as of the Closing, Seller shall cause ▇▇▇▇▇▇▇▇ and the Company to have no Indebtedness. At the Closing, Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one pay or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder cause to be made in paid, on behalf of ▇▇▇▇▇▇▇▇ and the form Company, the amounts of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up Indebtedness indicated pursuant to the nearest whole share; and
(dSection 7.02(l) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one Persons or more bank accounts designated specified in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)payoff letters.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nuverra Environmental Solutions, Inc.)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) deliver to Sellers the Closing Date Payment less the Indemnification Escrow Amount, by wire transfer of immediately available funds to an account or accounts designated in writing by Sellers to Buyer no later than three (3) Business Days prior to the Closing Date;
(ii) pay, on behalf of the Company or Sellers, the following outstanding amounts (if any):
(A) Indebtedness of the Company to be paid at Closing, by wire transfer of immediately available funds to the accounts and in the amounts designated in writing by Sellers to Buyer; and
(B) any Transaction Expenses unpaid prior to Closing, by wire transfer of immediately available funds to the accounts and in the amounts designated in writing by Sellers to Buyer;
(iii) deliver to the Escrow Agent:
(A) the Indemnification Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Indemnification Escrow Fund”) by wire transfer of immediately available funds to the account designated by the Escrow Agent, to be held for the purpose of securing the indemnification obligations of Seller set forth in ARTICLE VII; and
(B) the Escrow Agreement;
(iv) deliver to Sellers the Ancillary Documents, duly executed by the Buyer or, in the case of the Consulting Agreement, the Company; and
(v) such other documents or instruments as Sellers may reasonably request in order to consummate the transactions contemplated by this Agreement.
(b) At the Closing, Sellers shall deliver to the Buyer Buyer:
(i) stock certificates representing evidencing the Shares, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly endorsed executed in blank in proper form for transferblank;
(bii) the Buyer shall pay to each Seller Ancillary Documents, duly executed by wire transfer of immediately available funds to a bank account designated in writing by each such Seller the applicable counterparties thereto;
(such designation iii) all approvals, consents and waivers that are required to be made at least two listed on Section 3.05 of the Disclosure Schedules, duly executed by the appropriate counterparties;
(2iv) Business Days prior to resignations of the Closing Dateofficers and directors of the Company (solely in their respective capacities as such), duly executed by such officers and directors;
(iv) with respect a good standing certificate (or its equivalent) for the Company from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which the Company is organized and each other jurisdiction in which the Company is required to the Common Shares held be registered as a foreign corporation;
(vi) an IRS Form W-9 (or equivalent) for each Seller, duly executed by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(dvii) such other documents or instruments as Buyer may reasonably request in order to consummate the Buyer shall deliver to the Bank transactions contemplated by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow this Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Sources: Stock Purchase Agreement (Kingsway Financial Services Inc)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions Buyer shall be effected by the partiesdeliver:
(ai) To Escrow Agent, the Sellers Indemnification Escrow Amount (as defined in Section 8.04) by wire transfer of immediately available funds into an account designated in writing by Escrow Agent to Buyer prior to the Closing Date, to be held in escrow and administered by the Escrow Agent in accordance with the terms of the Indemnification Escrow Agreement;
(ii) To the appropriate parties, wire transfers in immediately available funds to satisfy the outstanding unpaid balance of the Stoneleigh Mortgages on the Closing Date and to pay any prepayment penalties or other fees, costs or expenses incurred in connection with the satisfaction of the Stoneleigh Mortgages;
(iii) To the appropriate parties, wire transfers in immediately available funds to satisfy the Silarx Equipment Loan and the Stoneleigh Soft Costs Loan, unless Seller provides Buyer, at or prior to the Closing, written confirmation that the Silarx Equipment Loan and the Stoneleigh Soft Costs Loan have been paid off and satisfied;
(iv) To Seller, an amount equal to the Aggregate Purchase Price minus the amounts disbursed pursuant to (i), (ii), and (iii) hereof, plus any prepayment penalties or other fees, costs or expenses incurred in connection with the satisfaction of the Stoneleigh Mortgages (to the extent not exceeding $70,000 in the aggregate), by wire transfer of immediately available funds to an account of Seller designated in writing by Seller to Buyer prior to the Closing Date; and
(v) To Seller, the Transaction Documents and all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Section 7.03 of this Agreement.
(b) At the Closing, Seller shall deliver to Buyer:
(i) certificates evidencing the Buyer certificates representing the SharesEquity Interests, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock or unit powers or other instruments of transfer duly endorsed executed in blank in proper form for transfer;blank, with all required stock or unit transfer tax stamps affixed thereto; and
(bii) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation Transaction Documents and all other agreements, documents, instruments or certificates required to be made delivered by Seller at least two (2) Business Days or prior to the Closing Date), (i) with respect pursuant to the Common Shares held by such Seller, the product Section 7.02 of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow this Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Transactions to be Effected at the Closing. and Post-Closing.
(a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) subject to that certain Direction Letter issued by Sellers to Buyer as of even date hereof (“Direction Letter”):
(A) deliver to Sellers the Initial Cash Payment (by wire transfer of immediately available funds) to an account designated in writing by Sellers to Buyer no later than two Business Days prior to the Closing Date;
(B) deliver to the Sellers and Redacted [Private Identifying Information], as applicable and in accordance with the terms contained on Exhibit 2.03(a), (i) shares of Buyer’s common stock (the “Buyer Closing Shares”) and (ii) warrants to purchase shares of Buyer’s common stock, such warrant substantially in the form attached as Exhibit F (the “Warrants”). The Buyer Closing Shares and the Warrants are subject to those terms contained on Exhibit 2.03(a);
(C) commit to issue to the Sellers, as applicable and in accordance with the terms contained on Exhibit 2.03(a), shares of Issuer’s common stock (collectively, the “Earnout Shares” and, together with the Buyer Closing Shares, the “Transaction Shares”) in accordance with the terms contained on Exhibit 2.03(a); and
(D) deliver the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Section 6.03 of this Agreement.
(ii) pay, on behalf of the Company or Sellers, the Indebtedness to be paid at Closing, by wire transfer of immediately available funds in the amounts specified as follows under the heading “Initial Cash Purchase Price”): provided, however, that the parties acknowledge that $200,000 of the Initial Cash Purchase Price will be funded directly to the Company and the Company shall pay such amount to the third party creditors owed portions of such amount as “Redacted” [Private Identifying Information] accounts payable as indicated above.
(b) At the Closing, each Seller shall deliver to Buyer:
(i) certificates evidencing the Buyer certificates representing the SharesUnits, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly endorsed executed in blank in proper form for transfer;blank, with all required stock transfer tax stamps affixed thereto; and
(ii) the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by each Seller at or prior to the Closing pursuant to Section 6.02.
(c) The parties further agree and acknowledge that (a) the Cash Purchase Price, (b) the Company’s assumption of the Company Note, (c) Buyer’s issuance of the Buyer shall pay Closing Shares and Warrants; and (d) Buyer’s commitment to each Seller by wire transfer issue the Earnout Shares in accordance with Exhibit 2.03(a) collectively are sufficient consideration for the Sellers’ sale of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior the Units and that no adjustment to the Closing Date), Purchase Price in accordance with this Agreement will affect the validity of the sale of the Units to Buyer or the other transactions contemplated by this Agreement.
(d) The Remaining Cash Payment shall be due and payable as follows:
(i) with respect The Remaining Cash Payment will be due to the Common Shares held by such Seller, following recipients and in the product of amounts specified as follows under the heading “Remaining Cash Purchase Price”):
(xii) Upon each Issuer financing (that occurs after the Per Common Share Closing Date Cash Consideration, if any, multiplied by (yPublic Date) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior in an amount resulting in gross proceeds to the Closing Issuer of less than $5,000,000, then one-half (1/2) of each such financing’s proceeds (but in no event more than the aggregate amount of outstanding unpaid Remaining Cash Payment) shall become immediately due and payable in accordance with Section 2.1(b)2.03(d)(i) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).above,
Appears in 1 contract
Sources: Equity Purchase Agreement
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions Acquirors shall be effected by the partiesdeliver:
(ai) the Cash Consideration to (x) the Administrative Agent under the AS Credit Facility in the amount specified in the payoff letter to be delivered by such Administrative Agent prior to the Closing Date to repay certain amounts due under the AS Credit Facility, in cash by wire transfer of immediately available funds to an account or accounts designated in such payoff letter; (y) certain Affiliates of the Sellers in the amounts specified in a payoff letter to be delivered by the Sellers prior to the Closing Date to repay certain intercompany indebtedness of the Acquired Companies, in cash by wire transfer of immediately available funds to an account or accounts designated in such payoff letter; and (z) to the Sellers (distributed to each Seller on a pro rata basis in accordance with each Seller’s respective ownership of the Company Common Stock as of the Closing Date) the remaining amount of the Cash Consideration after giving effect to the payments under clauses (x) and (y) above;
(ii) stock certificate(s) evidencing the Stock Consideration in the names and denominations requested by the Sellers, free and clear of all Liens;
(iii) funds to pay the Transaction Expenses, estimated to be approximately $50 million with the final amount thereof to be agreed to between the Sellers and the Acquirors prior to the Closing, to the payees of the amounts owed thereto; and
(iv) all other agreements, documents, instruments or certificates required to be delivered by the Acquirors at or prior to the Closing pursuant to Section 8.02 of this Agreement.
(b) At the Closing, each Seller shall deliver to the Buyer certificates representing the Acquirors, on behalf of such Seller:
(i) stock certificate(s) evidencing such Seller’s Shares, free and clear of all Liens, other than Permitted Liens, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly endorsed executed in blank in proper form for transfer;blank, with all required stock transfer tax stamps affixed thereto; and
(bii) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation all other agreements, documents, instruments or certificates required to be made delivered by the Sellers at least two (2) Business Days or prior to the Closing Date), (i) with respect pursuant to the Common Shares held by such Seller, the product Section 8.03 of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow this Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Sources: Stock Purchase Agreement (Double Eagle Acquisition Corp.)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) deliver to Seller: (A) the Sellers shall deliver to the Buyer certificates representing the SharesInitial Payment, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
less (bB) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Purchase Price Adjustment Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
less (fC) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Indemnity Escrow Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company Seller to Buyer no later than three (such designation to be made at least two (23) Business Days prior to the Closing Date;
(ii) amounts equaldeliver to Seller the Ancillary Documents to which ▇▇▇▇▇ is a party, in the aggregate, duly executed by ▇▇▇▇▇;
(iii) deliver to the holders of outstanding Indebtedness, if any, by wire transfer of immediately available funds that amount of money due and owing from Seller to such holders of outstanding Indebtedness as set forth on the Closing Statement;
(iv) deliver to the designated third parties by wire transfer of immediately available funds that amount of money due and owing from Seller or any Shareholder to such third parties as Transaction Expenses, Expenses as specified by set forth on the Company in accordance with Section 2.1(b)Closing Statement; and
(iv) deliver to the Escrow Agent:
(A) the Buyer shall deliver Purchase Price Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Purchase Price Adjustment Escrow Fund”) by wire transfer of immediately available funds to one an account designated by the Escrow Agent, to be held for the purpose of securing the obligations of Seller in Section 2.07(d);
(B) the Indemnity Escrow Amount (such amount, including any interest or more bank accounts other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Indemnity Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held for the purpose of securing the obligations of Seller and the Shareholders in writing Section 6.02; and
(C) the Escrow Agreement, duly executed by ▇▇▇▇▇.
(b) At the Closing, Seller shall deliver to Buyer and, in the case of the Escrow Agreement being delivered pursuant to clause (ii) below, the Escrow Agent:
(i) the Ancillary Documents, duly executed by ▇▇▇▇▇▇;
(ii) a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that Seller is not a foreign person within the meaning of Section 1445 of the Code, duly executed by Seller;
(iii) all approvals, consents and waivers that are listed on Section 3.04 of the Disclosure Schedules, duly executed by the counterparts thereof;
(iv) a good standing certificate (or its equivalent) for Seller from the Secretary of State of the State of California and each other jurisdiction in which Seller is required to be registered to do business as a foreign corporation;
(v) a satisfaction and release agreement executed by Bank of America, N.A. acknowledging that all obligations owed by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equalBank of America, in the aggregate, to the Transaction Bonuses (N.A. have been satisfied and authorizing the Company shall timely remit all applicable withholding obligations with respect to file a UCC-3 termination statement discharging the lien on the Purchased Assets; and
(vi) such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)other documents or instruments as Buyer may reasonably request.
Appears in 1 contract
Sources: Asset Purchase Agreement (Kingsway Financial Services Inc)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesPurchaser will:
(ai) issue a promissory note in favor of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇ Trust dtd. 11/13/07 (the “▇▇▇▇▇ Trust”), such note to have a face amount of $750,000 in the form of Exhibit A hereto (the “▇▇▇▇▇ Promissory Note”).
(ii) pay to each Stockholder by transfer of immediately available funds in accordance with the instructions provided in writing by the Representative to the Purchaser at least one Business Day prior to the Closing Date for such Stockholder an amount equal to (A) the Sellers Per Share Closing Date Payment multiplied by (B) the number of Shares set forth opposite such Stockholder’s name on Schedule A hereto under the heading “Number of Shares”; provided, however, that the payment due at Closing to the ▇▇▇▇▇ Trust shall be reduced by the initial principal balance of the ▇▇▇▇▇ Promissory Note; and provided, further, that the Stockholders may allocate among themselves a disparate share of the payment due at Closing such that certain Stockholders are not having their share of the Closing Payment reduced by their share of the Escrow Amount;
(iii) deposit with the Escrow Agent an amount equal to the Escrow Amount;
(iv) pay the Closing Debt Payment;
(v) deliver to the Buyer Representative an escrow agreement substantially in the form of Exhibit B hereto (the “Escrow Agreement”), duly executed by the Purchaser and the Escrow Agent; and
(vi) deliver to the Representative all other documents, instruments or certificates required to be delivered by the Purchaser at or prior to the Closing pursuant to this Agreement.
(b) At the Closing, each Stockholder and the Representative, as applicable, will deliver to the Purchaser:
(i) a certificate or certificates representing the number of Shares set forth opposite such Stockholder’s name on Schedule A hereto under the heading “Number of Shares, ,” duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transferand with all required stock transfer tax stamps affixed;
(bii) all other documents and instruments necessary to vest in the Purchaser all of such Stockholder’s right, title and interest in and to the Shares, free and clear of all Liens, subscriptions, options, warrants, calls, proxies, commitments and Contracts of any kind;
(iii) all copies of the consents, approvals and notices (if any) listed on Section 2.3(b)(iii) of the Stockholders’ Disclosure Schedule obtained or provided, as the case may be, in form and substance satisfactory to the Purchaser;
(iv) evidence of (A) the Buyer shall pay release of all Liens with respect to each Seller by wire transfer the property and assets of immediately available funds to a bank account designated the Company; (B) the repayment of all outstanding Indebtedness of the Company, except in writing by each such Seller accordance with Section 2.3(b)(iv)of the Stockholders’ Disclosure Schedule; (such designation C) the payment of any amounts payable under the Company’s severance, management, employment, stay, bonus, phantom stock, deferred compensation, termination or similar Plans or Contracts; (D) the payment of all amounts required to be made at least two paid prior to the Closing Date in accordance with Section 6.12; (2E) the termination of any Contracts between the Company, on the one hand, and any Stockholder, any Affiliate of a Stockholder or any family member of a Stockholder, on the other hand and (F) the cancellation of any amounts or obligations owing by the Company to any Stockholder, any Affiliate of a Stockholder or any family member of a Stockholder;
(v) the Escrow Agreement, duly executed by the Representative;
(vi) a properly prepared and executed certificate of non-foreign status under Treas. Reg. §1.1445-2(b)(2);
(vii) the Books and Records;
(viii) the resignations, effective as of the Closing, pursuant to Section 6.4;
(ix) the Organizational Documents of the Company;
(x) good standing certificates for the Company from the Secretary of State of the jurisdiction in which it is incorporated and from the Secretary of State in each other jurisdiction in which the Company is qualified to do business as a foreign corporation, in each case dated as of a date not earlier than three Business Days prior to the Closing Date)Closing;
(xi) such documents as may reasonably be requested by the Purchaser’s lenders or other financing sources; and
(xii) all other documents, (i) with respect instruments or certificates required to the Common Shares held be delivered by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated Stockholder at or prior to the Closing in accordance with pursuant to this Agreement (including Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws7.2).
Appears in 1 contract
Sources: Stock Purchase Agreement (InfuSystem Holdings, Inc)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers each Seller shall deliver to the Buyer certificates representing the SharesPurchase Shares owned by such Seller, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay the Closing Indebtedness (excluding all capitalized lease obligations) in accordance with the Pay-Off Letters;
(c) the Buyer shall pay the Company Expenses in accordance with invoices provided to the Buyer by the Company no later than two Business Days prior to the Closing;
(d) the Buyer shall deliver to the Escrow Agent by wire transfer of immediately available funds to a bank account of the Escrow Agent designated in writing by the Escrow Agent (such account to be designated at least two Business Days prior to the Closing and otherwise complying with the Escrow Agreement) (the “Escrow Account”) cash in the amount of $18,600,000 (the “Escrow Amount”);
(e) the Buyer shall transfer to the Company, by wire transfer of immediately available funds to a bank account of the Company designated in writing by the Company (such account to be designated at least two Business Days prior to the Closing) an amount equal to the excess of the Aggregate Consideration over the Escrow Amount;
(f) subject to satisfaction of the Buyer’s obligation under Section 2.5(e), the Company shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation account to be made designated at least two (2) Business Days prior to the Closing Date), (i) with respect an amount equal to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by Consideration payable to such Seller pursuant to Section 2.1 minus (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms Transaction Percentage of the Escrow Agreement;
Amount minus (fz) the Buyer shall deliver by wire transfer such Seller’s Transaction Percentage of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)any Reserve Holdback.
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) deliver such amounts to such Persons as necessary to satisfy all of the Sellers Company’s Indebtedness for borrowed money (which shall deliver to include the Buyer certificates representing outstanding principal amount of, and any accrued and unpaid interest on, and other payment obligations of the SharesCompany in respect of such Indebtedness (including any prepayment premiums, duly endorsed in blank breakage costs, fees and expenses (including reasonable and documented attorneys’ fees and disbursements) that become due and payable as a result of prepayment on such date or accompanied by stock powers duly endorsed in blank in proper form for transfer;
the consummation of the transactions contemplated hereby) other than (bA) if the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days ▇▇▇▇▇▇▇▇▇ Loan Consent has been obtained prior to the Closing Date), (i) with respect the outstanding balance relating to the Common Shares held by such Seller, the product of ▇▇▇▇▇▇▇▇▇ Loan and (xB) the Per Common Share Closing Date Cash ConsiderationPPP Loan, if anythe PPP Lender Consent has been obtained as of such time, multiplied by (y) in each case as indicated in the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and Funds Flow Memorandum;
(ii) with respect if the PPP Lender Consent has been obtained as of such time, (A) deliver a fully executed copy of the PPP Loan Escrow Agreement and (B) pay into the PPP Loan Escrow Account the PPP Loan Escrow Funding to the Preferred Shares be held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent PPP Loan Lender in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; andPPP Loan Escrow Agreement;
(diii) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) Seller an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) Estimated Purchase Price minus the Buyer shall deliver the Escrow Holding Sub Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated specified in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses AmountFunds Flow Memorandum;
(giv) subject to Section 2.03(c), deliver to QGH the Buyer shall deliver Holding Sub Amount, by wire transfer of immediately available funds to the bank account designated specified in writing the Funds Flow Memorandum;
(v) deliver payment of all Transaction Expenses as reflected in the Funds Flow Memorandum to the Persons indicated therein (and, for the avoidance of doubt, Buyer may rely upon the accuracy and correctness of any instructions to make such payments as set forth in the Funds Flow Memorandum); and
(vi) deliver to Seller evidence of the purchase by Avista Capital PartnersBuyer of the RWI Policy, LP together with evidence of the payment of the premium for the RWI Policy.
(b) At the Closing, the Seller Parties shall deliver to Buyer:
(i) subject to Section 2.03(c), duly executed instruments effecting the transfer of the Equity Interests to Buyer in customary form;
(ii) written resignations of the directors and officers (to the extent such designation officers are not employees of the Company) of the Company and Holding Sub as requested by Buyer pursuant to Section 6.05;
(iii) with respect to each Seller Party, a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that such Seller Party is not a foreign person within the meaning of Section 1445 of the Code; and
(iv) (A) a counterpart to the Non-Competition Agreement executed by NextChain Holdings, LLC and (B) a counterpart to the Non-Competition Agreement executed by RREF II NextChain, LLC, each substantially in the form attached as Exhibit C hereto.
(v) subject to Section 2.03(c) and Section 2.03(d), evidence of the amendment to the Broker Parcel Services Agreement in respect of the AH Warrants, in the form attached as Exhibit D hereto and executed by the Company and AH on or prior to the date of this Agreement (the “BPSA Amendment”), being in full force and effect as of the Closing.
(c) Notwithstanding anything to the contrary in this Agreement, in the event that an AH-Locus MAE has occurred and is continuing prior to the Closing, Buyer’s sole right and remedy under this Agreement shall be made at least two the following:
(2i) Business Days if an AH-Locus MAE has occurred and is continuing prior to the Closing Datewith respect to solely the AH Shares (taken together with the AH Warrants) or solely the Locus Shares, Buyer may elect to exclude (A) both the AH Shares and AH Warrants or (B) the Locus Shares, as applicable, from the transactions to be effected at the Closing (in which case, subject to Section 2.03(d), (x) QGH shall cause Holding Sub to transfer the AH Shares or the Locus Shares, as applicable, to an amount equal Affiliate of Holding Sub prior to the Management FeeClosing at its sole cost and expense and without any liability in connection therewith to Holding Sub or any of its Affiliates following the Closing (including Buyer and its Affiliates) and (y) in the case of an AH-Locus MAE with respect to the AH Shares, the BPSA Amendment shall not be effective and shall be null and void as of the Closing and accordingly, Section 2.03(b)(v) shall be of no force and effect, by providing to Seller written notice of such election prior to the anticipated Closing Date, in which case the Purchase Price shall be reduced by the AH Shares Amount or Locus Shares Amount, as specified applicable; or
(ii) if an AH-Locus MAE has occurred and is continuing prior to the Closing with respect to both the AH Shares and the Locus Shares, Buyer may elect to (A) exclude the acquisition of the Buyer Holding Sub Interests from the transactions to be effected at the Closing, and the BPSA Amendment shall not be effective and shall be null and void as of the Closing, by providing to Seller written notice of such election prior to the anticipated Closing Date, in which case the Purchase Price shall be reduced by the Company in accordance with Holding Sub Amount and Section 2.1(b2.03(b)(v) shall be of no force and effect, or (B) terminate this Agreement pursuant to Section 9.01(e);. For the avoidance of doubt, the occurrence of an AH-Locus MAE or the taking of any actions as permitted or required under this Section 2.03(c) shall not constitute a breach of this Agreement, and, subject to the right to terminate this Agreement pursuant to Section 9.01(e), the absence of an AH-Locus MAE shall not be a condition to the completion of the purchase and sale of the QL Shares subject to the terms and conditions of this Agreement.
(hd) In the event Buyer exercises the remedy contemplated by Section 2.03(c)(i) within five (5) Business Days of the anticipated Closing Date, the Seller Parties and Holding Sub shall as promptly as practicable transfer the adversely affected AH Shares or Locus Shares, as applicable, from Holding Sub to another Subsidiary or Affiliate of the Seller Parties, without any liability in connection therewith to Buyer or any of its Affiliates (including, following the Closing, Holding Sub). Buyer acknowledges and agrees that the transfer described in the immediately preceding sentence may not be completed prior to the Closing, in which case (i) the Buyer Holding Sub Interests shall deliver not be transferred to Buyer at the Closing (nor shall the Holding Sub Amount be paid at the Closing) and such failure to so transfer the Buyer Holding Sub Interests and pay the Holding Sub Amount at the Closing shall not constitute a breach of this Agreement or a failure to satisfy any condition to the completion of the purchase and sale of the QL Shares subject to the terms and conditions of this Agreement; (ii) in the case of an AH-Locus MAE with respect to the AH Shares, the BPSA Amendment shall not be effective and shall be null and void as of the Closing and Section 2.03(b)(v) shall be of no force and effect; and (iii) the Buyer Holding Sub Interests shall be transferred, conveyed, sold and assigned to Buyer following the Closing promptly after the completion of such transfer of the adversely affected AH Shares or Locus Shares, as applicable, to another Subsidiary or Affiliate of the Seller Parties, and the AH Shares Amount or Locus Shares Amount, as applicable, shall be paid by Buyer to QGH at the time of transfer of the Buyer Holding Sub Interests to Buyer by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, applicable account specified in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Funds Flow Memorandum.
Appears in 1 contract
Sources: Stock Purchase Agreement (American Eagle Outfitters Inc)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) deliver to the Paying Agent:
(A) on behalf of the Sellers, the Cash Consideration plus the Estimated Closing Cash less the sum of (1) the Purchase Price Adjustment Escrow Amount, (2) the Indemnification Escrow Amount, (3) the Option Cashout Amount, (4) the Estimated Closing Indebtedness Amount, and (5) the Estimated Closing Transaction Expense Amount, by wire transfer of immediately available funds to the account designated by the Paying Agent (the “Closing Date Payment”); and
(B) the Paying Agent Agreement;
(ii) deliver to Sellers the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Section 8.03 of this Agreement; and
(iii) pay, on behalf of the Company or Sellers, the following amounts:
(A) the Estimated Closing Indebtedness Amount by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Certificate;
(B) the Estimated Closing Transaction Expense Amount by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Certificate;
(iv) deliver to the Rollover Sellers the Stock Consideration in the amounts allocated among the Rollover Sellers as set forth in the Distribution Schedule;
(v) deliver to the Escrow Agent:
(A) the Purchase Price Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Purchase Price Adjustment Escrow Fund”) by wire transfer of immediately available funds to accounts designated by the Escrow Agent, to be held for the purpose of securing the obligations of Sellers in Section 2.04(d);
(B) the Indemnification Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Indemnification Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held for the purpose of securing the indemnification obligations of Sellers set forth in Article IX and the obligations of Sellers in Section 2.04(d) and Section 7.08;
(C) the Escrow Agreement;
(vi) deliver to the Company, for delivery to the Optionholders, the Option Rollover Consideration in the amounts allocated among the Optionholders as set forth in the Distribution Schedule; and
(vii) deliver to the Company, for payment to the Optionholders through payroll, the Option Cashout Amount (as defined below) in the amounts allocated among the Optionholders as set forth in the Distribution Schedule.
(b) At the Closing, each Seller and Optionholder shall deliver to Buyer:
(i) stock certificates evidencing the Buyer certificates representing the SharesShares owned by such Seller, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly endorsed executed in blank in proper form for transferblank, with all required stock transfer tax stamps affixed thereto (or, if any Seller determines that its certificate(s) has been lost, stolen or destroyed, such Seller shall deliver an executed lost certificate affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be made on account of any lost certificate(s));
(bii) original instruments evidencing the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares Warrants held by such Seller, the product free and clear of all Encumbrances, duly endorsed in blank or accompanied by instruments of transfer duly executed in blank, with all required transfer tax stamps affixed thereto (x) the Per Common Share Closing Date Cash Considerationor, if anyany Seller determines that its instrument(s) has been lost, multiplied by (y) the Common Shares outstanding on the Closing Date owned by stolen or destroyed, such Seller as listed on Schedule 4.5(a) attached hereto (as the same shall deliver an executed lost instrument affidavit and indemnification agreement reasonably acceptable to Buyer to indemnify Buyer against any claim that may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding made on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(blost instrument(s);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(iiii) the Buyer shall deliver by wire transfer of immediately available funds to one Ancillary Documents and all other agreements, documents, instruments or more bank accounts designated in writing by the Company (such designation certificates required to be made delivered by such Seller or Optionholder at least two (2) Business Days or prior to the Closing Date) amounts equal, in the aggregate, pursuant to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Section 8.02 of this Agreement.
Appears in 1 contract
Sources: Stock and Warrant Purchase Agreement (Wavedancer, Inc.)
Transactions to be Effected at the Closing. (a) At the Closing, FID shall lend an amount equal to the Closing Date Retired Indebtedness and the Unpaid Target Company Expenses to the Target Companies and the Seller shall procure that each relevant member of the Target Group fully discharges the Closing Date Retired Indebtedness and Unpaid Target Company Expenses and shall take such other action as is reasonably required by FID to demonstrate that following transactions such discharge, the Permitted Liens set out in Exhibit B, shall promptly be effected by the parties:released.
(ab) At the Sellers Closing, FID shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;Seller:
(bi) an amount equal to the Buyer shall pay to each Seller Closing Date Cash Consideration in immediately available funds by wire transfer of immediately available funds to a bank an account designated in writing by each such the Seller to FID no later than three (such designation to be made at least two (23) Business Days prior to the Closing Date)
(ii) a certificate (that shall be given on behalf of FID and LEC (in respect of Sections 8.6, (i8.7 and 8.9 only) with respect and without any personal liability on the part of the signatories) certifying that each of the conditions specified in Section 8.1, Section 8.2, Section 8.3, Section 8.6 and Section 8.9, is satisfied in all respects and that to the Common Shares held Knowledge of FID and LEC each of the conditions in Section 8.4, Section 8.5, Section 8.7 is satisfied in all respects; and
(iii) all other documents, instruments or certificates required to be delivered by such Seller, FID to the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated at or prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect pursuant to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;this Agreement.
(c) At the Buyer Closing, the Seller shall deliver to each FID:
(i) the certificates for the Shares, accompanied by stock transfer forms duly executed by the Seller in a number form satisfactory to FID and LEC;
(ii) all other documents and instruments necessary to vest in FID all of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each the Seller’s electionright, title and interest in and to the Shares, free and clear of all Liens, except for the Permitted Liens set out in Exhibit B;
(iii) deeds of release, in a form reasonably satisfactory to FID and LEC, in each case executed by a relevant lender to whom any part of the Target Company Retired Indebtedness is outstanding, confirming that subject to their receipt of an amount equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence their relevant portion of the definition Target Company Retired Indebtedness, they shall release any security held by them over any member of the Target Group at Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form or if later as soon as reasonably practicable following their receipt of shares of Buyer Common Stock shall be made only in whole sharessuch relevant portion, and any fractional shares shall be rounded up to if applicable counter-executed by the nearest whole share; andrelevant Target Group member;
(div) the Buyer shall deliver to the Bank written resignations of all officers (except as otherwise requested by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank FID no later than three (such designation to be made at least two (23) Business Days prior to the Closing Date) and directors of each member of the Target Group, in the form agreed between the parties in each case acting reasonably, to be effective as of the Closing;
(v) irrevocable powers of attorney, in the form agreed between the parties, in each case acting reasonably, executed by the Seller, empowering FID (during the period prior to the registration of the Shares in the name of FID) to exercise all rights attaching to the Shares;
(vi) the statutory registers and minute books (written up to the time of Closing), the common seal (if any), certificate of incorporation and any certificates on change of name, in each case for each member of the Target Group;
(vii) signed minutes of a board meeting of each Target Company at which the directors of such Target Company resolve, with effect from Closing, to (A) appoint such persons as FID may direct as directors of such Target Company; (B) approve the registration of the transfer of the relevant Shares, subject only to the transfers being stamped; (C) accept resignations delivered by the current auditors and directors of such Target Company effective as of Closing; (D) appoint such auditors and individuals who are notified to the Seller as auditors and officers of the Target Group members, respectively, with effect from Closing;
(viii) a certificate (that shall be given on behalf of the Seller and without any personal liability on the part of the signatory) certifying that each of the conditions specified in Section 7.1, Section 7.2 and Section 7.6 is satisfied in all respects and that to the Knowledge of the Seller each of the conditions in Section 7.4, Section 7.5, and Section 7.7 is satisfied in all respects;
(ix) copies of all Material Contracts and originals of Real Property Leases (save for Real Property Leases that have been registered (or are in the process of being registered) at HM Land Registry or with the Scottish Land Registry and for the leases relating to Oak Tree Lodge, Fernibrae, Gardrum and relating to the assignation in respect of ▇▇▇▇▇, in relation to which a copy only is provided); and
(d) all other documents, instruments or certificates required to be delivered by the Seller at or prior to the Closing pursuant to this Agreement.
(e) All documents and items delivered at Closing pursuant to this Section 2.1 shall be held by the recipient to the order of the person delivering the same until such time as the Closing shall be deemed to have taken place. Simultaneously with:
(i) delivery of all documents and all items required to be delivered at the Closing in accordance with this Section 2.1 (or waiver of the delivery of it by the person entitled to receive the relevant document or item); and
(ii) receipt of an electronic funds transfer by the Seller of an amount equal to the Credit Agreement Outstanding Payoff Amount;
Closing Date Cash Consideration and payment of the Closing Date Retired Indebtedness and Unpaid Target Company Expenses (e) as required in the Buyer latter case by Section 2.3), the documents and items delivered in accordance with this Section 2.1 shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent cease to be held and disbursed in accordance with to the terms order of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to person delivering them and the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds be deemed to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)have taken place.
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer will:
(ai) pay the Sellers shall deliver Closing Payment to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
Sellers’ Representative (b) the Buyer shall pay to each Seller by wire transfer of immediately available funds in U.S. dollars to a bank an account designated in writing specified by each such Seller (such designation the Sellers’ Representative to be made at least two (2) the Buyer no later than one Business Days Day prior to the Closing DateClosing), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and ;
(ii) with respect pay the Closing Indebtedness Amount and the Seller Transactions Costs to the Preferred Shares held by such Sellerapplicable payees, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on as set forth in the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
Statement (c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds in U.S. dollars to an account specified by each applicable payee); provided that any amounts with respect to Taxes shall be paid by the Acquired Companies in a manner as required by applicable Law and to the extent of any compensatory payments, such bank account payments will be made through the regular payroll of the Bank designated in writing Acquired Companies; and
(iii) deliver to the Sellers all other documents, instruments or certificates required to be delivered by the Bank (such designation to be made Buyer at least two (2) Business Days or prior to the Closing Datepursuant to Section 7.2 of this Agreement.
(b) an amount equal At the Closing, each Seller will deliver to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); andBuyer:
(i) the Buyer shall deliver Interests, including any certificates thereof (if any), accompanied by wire an instrument of assignment or other instrument of transfer, duly executed as necessary by such Seller for transfer and sale of immediately available funds such Interests to one or more bank accounts designated in writing the Buyer;
(ii) unless otherwise requested by the Company Buyer, resignation letters from each member of the Board of Directors of the Acquired Companies; and
(such designation iii) all other documents, instruments or certificates required to be made delivered by such Seller at least two (2) Business Days or prior to the Closing Datepursuant to Section 7.1 of this Agreement. 69838412_11 DB1/ 98258861.9
(c) amounts equalFollowing receipt of the Closing Payment from the Buyer pursuant to Section 2.3(a)(i), in the aggregateSellers’ Representative shall distribute to each Seller an amount equal to such Seller’s Pro-Rata Share multiplied by the Closing Payment. Except for the Buyer’s obligation to remit the Closing Payment pursuant to Section 2.3(a)(i), the Buyer shall have no obligation or liability to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations Sellers with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Lawsdistribution of the Closing Payment under this Section 2.3(c).
Appears in 1 contract
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) Purchaser shall deliver to Seller payment, by wire transfer to a bank account designated in writing by Seller (such designation to be made at least five (5) Business Days prior to the Sellers Closing Date), in immediately available funds in an amount equal to the Initial Closing Date Amount;
(b) Purchaser shall deliver to the Buyer certificates Escrow Agent, by wire transfer of immediately available funds, an amount equal to the Adjustment Escrow Amount, which amount shall be held by the Escrow Agent in a separate account (the “Adjustment Escrow Account”) to be established and maintained by the Escrow Agent pursuant to the terms and conditions of an escrow agreement by and among Purchaser, Seller and the Escrow Agent in substantially the form attached on Exhibit A (the “Escrow Agreement”);
(c) Purchaser shall pay, or cause to be paid, all amounts necessary to discharge in full all Indebtedness for borrowed money set forth on the Estimated Closing Statement by wire transfer in immediately available funds as directed by the holders of such Indebtedness (such direction to be made at least five (5) Business Days prior to the Closing Date);
(d) Purchaser shall pay, or cause to be paid, on behalf of the Company or a subsidiary thereof, the Estimated Transaction Expenses set forth on the Estimated Closing Statement to the payees thereof and in such amounts as set forth in invoices delivered to Purchaser by Seller at least five (5) Business Days prior to the Closing Date;
(e) Seller shall deliver, or cause to be delivered, to Purchaser certificates, if any, representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfertransfer or other customary instruments of transfer and assignment;
(bf) Each of Purchaser and Seller shall duly execute and deliver to the Buyer other, and cause the Escrow Agent to duly execute and deliver to Purchaser and Seller, the Escrow Agreement;
(g) Each of Purchaser and Seller or an Affiliate thereof shall duly execute and deliver to the other the Transition Services Agreement;
(h) Purchaser shall pay to each the Escrow Agent all fees payable to the Escrow Agent on the Closing Date pursuant to the Escrow Agreement;
(i) Seller by wire transfer shall cause all Liens on assets or properties of immediately available funds to a bank account designated in writing by each such Seller (such designation the Company or any of its subsidiaries securing any Indebtedness for borrowed money to be made released, and Seller shall deliver to Purchaser at least two (2) Business Days prior to the Closing Date)Date one or more customary payoff letters in form and substance reasonably acceptable to Purchaser evidencing the release of all such Liens (such letters, (i) with respect to the Common Shares held by such Sellercollectively, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b“Payoff Letters”)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(cj) the Buyer Seller shall deliver to each Seller a number Purchaser resignation letters, dated as of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b))Date, less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provideddirectors, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, managers and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account officers of the Bank designated Company and its subsidiaries as requested by Purchaser in writing by the Bank no later than three (such designation to be made at least two (23) Business Days prior to the Closing Date; and
(k) an amount equal Seller shall deliver to Purchaser good standing certificates (or similar equivalents in any jurisdiction) with respect to the Credit Agreement Outstanding Payoff Amount;
Company and each of its subsidiaries from the state or jurisdiction of their respective formation or incorporation, dated within fifteen (e15) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days calendar days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Sources: Equity Purchase Agreement (Select Interior Concepts, Inc.)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions Buyer shall be effected by the partiesdeliver to Sellers:
(ai) the Sellers shall deliver to Purchase Price (less the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(bHoldback Consideration) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated accounts and in writing amounts set forth on Exhibit A, which Exhibit A shall be prepared by each such Seller (such designation Sellers and delivered to be made Buyer at least two five (25) Business Days before Closing and shall set forth the portion of the Purchase Price to be paid by Buyer to each Seller at Closing in accordance with the Allocation Percentage of each Seller; and
(ii) all Transaction Documents required to be delivered by Buyer at or prior to the Closing Date)pursuant to this Agreement, including, but not limited to, those Transaction Documents set forth in Section 7.03.
(b) At the Closing, Sellers shall deliver to Buyer:
(i) with respect an assignment of the Membership Units to Buyer in form and substance reasonably satisfactory to Buyer (the Common Shares held “Assignment”), duly executed by such Seller, Sellers;
(ii) all Transaction Documents required to be delivered by Sellers or the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated Company at or prior to the Closing pursuant to this Agreement, including, but not limited to, those Transaction Documents set forth in accordance with Section 2.1(b)7.02; and
(iii) and (ii) with respect to the Preferred Shares held by such from each Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;a properly completed and duly executed IRS Form W-9.
(c) At the Closing, Buyer shall deliver repay, or cause to each Seller a number of shares of Buyer Common Stockbe repaid, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence behalf of the definition Company, all amounts necessary to discharge fully the then‑outstanding balance of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver all Indebtedness set forth on Exhibit B by wire transfer of immediately available funds to the bank account designated account(s), in writing the amounts, and in accordance with the payoff instructions indicated in the payoff letters delivered by the Sellers’ Representative holders of such Indebtedness.
(such designation d) At the Closing, Buyer shall repay, or cause to be made at least two (2) Business Days prior to repaid, on behalf of the Closing Date) the Company and Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver , by wire transfer of immediately available funds funds, all amounts necessary to discharge fully all Closing Date Sellers Expenses, in the bank account designated amounts and in writing by Avista Capital Partners, LP accordance with the payment instructions set forth on Exhibit B.
(such designation e) Sellers shall prepare and deliver Exhibit B to be made Buyer at least two five (25) Business Days prior before Closing.
(f) All deliveries, payments, and other transactions and documents relating to the Closing Date) an amount equal shall be interdependent, and none shall be effective unless or until all are effective (except for any of which the party or parties entitled to the Management Fee, benefit thereof has expressly waived in writing satisfaction or performance thereof as specified by a condition precedent to the Company in accordance with Section 2.1(bClosing);.
(hg) At the Closing, Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by retain the Company (such designation to be made at least two (2) Business Days prior Holdback Consideration subject to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with terms and conditions of Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)2.07.
Appears in 1 contract
Sources: Membership Unit Purchase Agreement (Tribune Publishing Co)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the partieseffected:
(a) the Sellers Parent shall deliver (or cause to be delivered):
(i) to the Buyer certificates representing Transfer Agent the Shares, duly endorsed aggregate number of Consideration Shares to be delivered to Stockholders in blank or accompanied by stock powers duly endorsed in blank in proper form for transferaccordance with the terms of this Agreement;
(bii) to the Buyer shall pay to each Seller Payments Administrator, by wire transfer of immediately available funds to a bank the account designated in writing by each such Seller (such designation to be made the Payments Administrator at least two (2) Business Days prior to the Closing Date), an amount equal to (i1) with respect the Closing Payment, less (2) any amounts owed on account of Dissenting Shares, for further distribution to the Common Shares held by such Seller, Stockholders (other than the product of (xDissenting Stockholders) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b2.6(a)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(ciii) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b))Company, less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank the account of the Bank designated in writing by the Bank (such designation to be made Company at least two (2) Business Days prior to the Closing Date) , an amount equal to the Credit Agreement Outstanding Payoff Aggregate Option Payment Amount, for further distribution to the Optionholders in accordance with Section 2.6(a);
(eiv) to such parties designated in the Buyer shall deliver Payoff Letters, by wire transfer of immediately available funds to such bank account or bank accounts designated in such Payoff Letters, the Escrow Amountamounts set forth in such Payoff Letters (the “Payoff Amounts”);
(v) to such parties to whom any Company Expenses are payable pursuant to the instruction delivered pursuant to Section 2.8(d), including any shares by wire transfer of Buyer Common Stockimmediately available funds to such bank account or bank accounts designated pursuant to Section 2.8(d), if applicable, the applicable amount set forth in the instruction delivered pursuant to Section 2.8(d);
(vi) to the Escrow Agent to be held and disbursed Agent, for deposit in accordance with an escrow account (the terms of the “Escrow Agreement;
(f) the Buyer shall deliver Account”), by wire transfer of immediately available funds to the bank account designated in the Escrow Agreement or otherwise designated in writing by the Sellers’ Representative (such designation to be made Escrow Agent at least two (2) Business Days prior to the Closing Date) , an amount in cash equal to the Sellers’ Representative Expenses Escrow Amount, to be held by the Escrow Agent and distributed by the Escrow Agent in accordance with the terms of the Escrow Agreement and the applicable provisions of this Agreement;
(gvii) to the Buyer shall deliver Stockholders’ Representative, for deposit in an account established by the Stockholders’ Representative (the “Stockholders’ Representative Reserve Account”), by wire transfer of immediately available funds to the bank an account designated in writing by Avista Capital Partners, LP (such designation to be made the Stockholders’ Representative at least two (2) Business Days prior to the Closing Date) , an amount in cash equal to the Management FeeStockholders’ Representative Reserve Amount, as specified to be held by the Company Stockholders’ Representative in a segregated account for purposes of satisfying fees, costs and expenses incurred in its capacity as the Stockholders’ Representative and otherwise in accordance with Section 2.1(b);
this Agreement (h) provided that, for Tax purposes, the Buyer Stockholders’ Representative Reserve Account shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing be treated by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, parties as specified having been received and voluntarily set aside by the Company in accordance with Section 2.1(bSellers at the time of Closing); and
(viii) to the Company, the Stockholders’ Representative and the Escrow Agent, an executed copy of the Escrow Agreement; and
(ix) to the Company a certificate dated as of the Closing Date from Parent (executed by an authorized officer of Parent) to the effect that the conditions set forth in Section 9.3(a) and Section 9.3(b) have been fully satisfied.
(b) The Company shall deliver (or cause to be delivered):
(i) to Parent, executed copies of the Buyer shall deliver Payoff Letters;
(ii) to Parent and Escrow Agent, a copy of the Escrow Agreement executed by wire transfer the Stockholders’ Representative;
(iii) certificates from the applicable jurisdiction of immediately available funds formation or incorporation as to one the good standing of the Company and its Subsidiaries in the applicable jurisdiction, dated within ten days of the Closing Date;
(iv) the preliminary statement including the Estimated Adjustment Amount pursuant to Section 2.8(b);
(v) Indemnity Support Agreements in the form attached hereto as Exhibit H duly executed by the Indemnifying Sellers;
(vi) restrictive covenant agreements in the form attached hereto as Exhibit I duly executed by the Sellers identified on Schedule 2.9(b)(vi);
(vii) Accredited Investor Representation and Lock-Up Acknowledgement Agreements in the form attached hereto as Exhibit J (the “Lock-Up Acknowledgement Agreement”) duly executed by the Stockholders entitled to Consideration Shares;
(viii) duly executed agreements terminating the Affiliate transactions identified on Schedule 2.9(b)(viii);
(ix) a certificate dated as of the Closing Date, duly executed by the Secretary of the Company, certifying as to an attached copy of (A) the resolutions of the board of directors of the Company authorizing and approving the execution, delivery and performance of, and the consummation of the Merger, this Agreement and the transactions contemplated hereby and (B) the executed stockholder consent evidencing the Stockholder Written Consent, and stating that such resolutions and Stockholder Written Consent have not been amended, modified, revoked or more bank accounts designated rescinded;
(x) to Parent, (A) a properly executed statement, in writing substantially the form attached hereto as Exhibit K, dated as of the Closing Date and executed by the Company, certifying that the Shares do not constitute “United States real property interests” under Section 897(c) of the Code, and (B) a “FIRPTA Notification Letter”, in substantially the form attached hereto as Exhibit K dated as of the Closing Date and executed by the Company;
(xi) to Parent a certificate dated as of the Closing Date from the Company (such designation to be made at least two (2executed by an authorized officer of the Company) Business Days prior to the Closing Dateeffect that the conditions set forth in Section 9.2(a), Section 9.2(b) amounts equaland Section 9.2(c) have been fully satisfied;
(xii) evidence reasonable satisfactory to Parent that the board of directors of the Company has taken all actions necessary to terminate the Oqton, Inc. 2021 Incentive Plan, along with copies of fully executed Phantom Equity Termination Agreements with each Phantom Equity Holder; and
(xiii) evidence reasonable satisfactory to Parent that all shares held by ▇▇. ▇▇▇▇▇ ▇▇▇▇▇ in the aggregate, Oqton Belgium NV have been transferred to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Company.
Appears in 1 contract
Sources: Merger Agreement (3d Systems Corp)
Transactions to be Effected at the Closing. (a) At the Closing, Security Capital will (i) pay to each Minority Stockholder by transfer of immediately available funds in accordance with the following transactions shall be effected by wire instructions provided to Security Capital prior to the parties:
date hereof an amount equal to (aA) the Sellers shall Per Share Payment multiplied by (B) the number of shares of WC Common Stock set forth opposite such Minority Stockholder’s name on Schedule A under the heading “Number of Shares” and (ii) deliver to the Buyer Minority Stockholders all other documents, instruments or certificates required to be delivered by Security Capital at or prior to the Closing pursuant to this Agreement.
(b) At the Closing, Security Capital will (i) pay to each Optionholder by transfer of immediately available funds in accordance with the wire instructions provided to Security Capital prior to the date hereof an amount equal to (A) (1) the Per Share Payment multiplied by (2) the number of shares set forth opposite such Optionholder’s name on Schedule B under the heading “Number of Shares Subject to Options”, minus (B) the aggregate exercise price for such WC Options, as set forth opposite such Optionholder’s name on Schedule B under the heading “Aggregate Exercise Price” and (ii) deliver to each Optionholder all other documents, instruments or certificates required to be delivered by Security Capital at or prior to the Closing pursuant to this Agreement.
(c) At the Closing, (i) each of the Minority Stockholders will deliver to Security Capital a certificate or certificates representing the Shares, WC Minority Shares owned by such Minority Stockholder duly endorsed in blank or accompanied by stock powers duly endorsed in blank blank, (ii) each Optionholder will deliver to the Company a written agreement that all WC Options held by such Optiohholder have been canceled and terminated, (iii) each of the Minority Securityholders will deliver to Security Capital and the Company a duly executed certificate certifying that (A) all of the representations and warranties of such Person set forth in proper form for transfer;
this Agreement are true and correct as of the Closing and (bB) such Person has performed in all the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation covenants and agreements required to be made performed by him under this Agreement at least two (2) Business Days or prior to the Closing Date), and (i) with respect to the Common Shares held by such Seller, the product of (xiv) the Per Common Share Closing Date Cash ConsiderationMinority Securityholders will deliver to Security Capital all other documents, if any, multiplied instruments or certificates required to be delivered by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated Minority Securityholders at or prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect pursuant to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;this Agreement.
(cd) At the Buyer shall deliver to each Seller a number of shares of Buyer Common StockClosing, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance Security Capital will deposit with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent $2,121,703.68 (the “WC Escrow Funds”). The WC Escrow Funds will be held (and released) in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Sources: Stock Purchase Agreement (Security Capital Corp/De/)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the parties:
Buyer will (ai) the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller their respective Pro Rata Share of the Closing Date Payment, adjusted in accordance with Section 2.3, by wire paying such sum to each Seller by transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and instructions provided by the Sellers, (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver issue to each Seller a number of shares of Buyer Common StockSeller Note, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an a principal amount equal to their respective Pro Rata Share of the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Adjusted Aggregate Principal Amount, including any shares of Buyer Common Stock(iii) pay, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms on behalf of the Escrow Agreement;
(f) Companies, any unpaid Transaction Expenses as of the Buyer shall deliver by Closing, via wire transfer of immediately available funds to the bank account designated accounts and in writing the amounts reflected in the Closing Transaction Expenses Certificate to be delivered by the Sellers’ Representative Companies to Buyer within one (such designation to be made at least two (21) Business Days day prior to the Closing DateClosing, (iv) pay, on behalf of the Sellers’ Representative Expenses Amount;
(g) Companies, any Indebtedness of the Buyer shall deliver by Companies to be paid at the Closing, via wire transfer of immediately available funds to the bank account designated accounts and in writing by Avista Capital Partners, LP (such designation the amounts reflected in the Closing Indebtedness Certificate to be made delivered by the Companies to Buyer within one (1) day prior to the Closing, (v) deliver to the Escrow Agent (A) the Escrow Amount for deposit into the Escrow Account, and (B) the Escrow Agreement, duly executed by Buyer; and (vi) deliver or cause to be delivered to the Sellers all other documents, instruments or certificates required to be delivered by the Buyer at least two (2) Business Days or prior to the Closing Datepursuant to Section 7.2 of this Agreement.
(b) an amount equal At the Closing, each Seller will (i) deliver to the Management FeeBuyer a certificate or certificates representing the Securities, as specified if certificated, duly endorsed or accompanied by stock powers, duly endorsed in blank, (ii) deliver to the Escrow Agent the Escrow Agreement, duly executed by the Company in accordance with Section 2.1(b);
Sellers; and (hiii) deliver or cause to be delivered to the Buyer shall deliver by wire transfer of immediately available funds all other documents, instruments or certificates required to one or more bank accounts designated in writing be delivered by the Company (such designation to be made Sellers at least two (2) Business Days or prior to the Closing Date) amounts equal, in the aggregate, pursuant to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer 7.1 of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)this Agreement.
Appears in 1 contract
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), the following:
(i) with in respect of each share of Series A Preferred Stock outstanding immediately prior to the Common Shares Closing held by such Seller, an amount equal to the product sum of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by Series A Liquidation Preference plus the Per Share Initial Consideration (y) based on the number of Common Shares into which such Series A Preferred Stock are convertible as of immediately prior to the Closing);
(ii) in respect of each share of Series A-1 Preferred Stock outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated immediately prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) an amount equal to the Per Preferred Share Cash Series A-1 Liquidation Preference plus the Per Share Initial Consideration multiplied by (y) based on the number of Common Shares into which such Series A-1 Preferred Shares Stock are convertible as of immediately prior to the Closing); and
(iii) in respect of each Common Share outstanding on immediately prior to the Closing Date owned held by such Seller as listed on Schedule 4.5(a) attached heretoSeller, an amount equal to the Per Share Initial Consideration;
(c) the Buyer shall deliver pay to each Seller Optionholder by wire transfer of immediately available funds to a number of shares of Buyer Common Stock, which may bank account designated in writing by each such Optionholder (such designation to be represented by one or more certificates or may be uncertificated, made at each Seller’s election, equal to the product of least two (x2) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated Business Days prior to the Closing Date), in respect of each vested Option held by such Optionholder immediately prior to the Closing, an amount equal to the Per Share Initial Option Consideration;
(d) the Buyer shall deliver to the Sellers’ Representative by wire transfer of immediately available funds to a bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Reserve Amount;
(e) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and;
(df) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) Company Debt under the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Financing Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;; and
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts an amount equal, in the aggregate, to the Seller Transaction Expenses$104,500, as specified by the in respect of Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer Debt owed to certain Affiliates of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws“Affiliate Debt”).
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) pursuant to Section 4 of the Sellers shall Escrow Agreement, deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;Escrow Agent:
(bA) the Buyer shall pay to each Seller Payment by wire transfer of immediately available funds to a bank account designated in writing by each such Seller the amount of two hundred and fifty thousand dollars (such designation to be made at least two $250,000) not later than one (21) Business Days after the execution of this Agreement.
(b) At the Closing, Sellers shall concurrently deliver to Escrow Agent, pursuant to Sections 4(b) and 4(c) of the Escrow Agreement:
(i) The executed notarized letter of instruction, signed by Sellers, addressed to the Company’s transfer agent, Action Stock Transfer, with instruction to transfer all legal right, title and interest in the Shares to Buyer, based solely on the direction of the Escrow Agent free and clear of all Encumbrances, duly endorsed or accompanied by any required medallion guaranteed stock powers or other instruments of transfer; and,
(ii) Written confirmation of Action Stock Transfer Company’s to the Escrow Agent of its receipt of the executed notarized letter of instruction and medallion guaranteed stock powers, along with confirmation that it will only act to transfer Seller’s Shares upon the instruction and direction of the Escrow Agent along with any agreements, documents, instruments or certificates required to be delivered by Seller sat or prior to the Closing Date), (i) with respect pursuant to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;this Agreement.
(c) Consistent with Section 4.0(d) of the Escrow Agreement and the provisions hereof, Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the instruct Escrow Agent to be held and disbursed in accordance with wire transfer the terms Purchase Price to the recipients on Schedule B immediately after Escrow Agent confirms receipt of the executed notarized letter of instructions, medallion guaranteed stock powers and Action Stock Transfer’s acknowledgment that it will act to transfer the Shares only upon Escrow Agreement;
(f) the Buyer Agent’s direction. Escrow Agent shall deliver by wire transfer of immediately available funds the Purchase Price to the bank account designated in writing by recipients on Schedule B, send written confirmations of the Sellers’ Representative (such designation wire transfers to be made at least two (2) Business Days prior Sellers and then concurrently instruct Action Stock Transfer to transfer the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds Shares to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Buyer.
Appears in 1 contract
Transactions to be Effected at the Closing. At The following events shall constitute the Closing, Closing in the following transactions shall be effected by the partiessequential order of events:
(a) the Sellers First, Seller shall deliver to Buyer:
(i) such instruments of transfer required or reasonably requested by B▇▇▇▇ to transfer and assign the Buyer Closing Equity to the Buyer;
(ii) a duly executed Post Closing Funds Management Agreement;
(iii) a duly executed Post Closing Assignment Agreement;
(iv) a duly executed Transition Services Agreement; and
(v) a duly executed Post Closing Covenant Agreement.
(vi) all other agreements, documents, instruments or certificates representing required to be delivered by Seller at or prior to the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;Closing pursuant to Section 6.02 of this Agreement.
(b) the Second, Buyer shall pay deliver to each Seller Seller:
(i) all other agreements, documents, instruments or certificates required to be delivered by wire Buyer at or prior to the Closing pursuant to Section 6.03 of this Agreement; and
(ii) a duly executed Post Closing Funds Management Agreement;
(iii) a duly executed Post Closing Assignment Agreement;
(iv) a duly executed Transition Services Agreement; and
(v) a duly executed Post Closing Covenant Agreement.
(c) Upon the foregoing transfer of Closing Equity, exchange of executed documents, and the consent of the Parties, B▇▇▇▇ shall immediately available funds deliver cash (i) to Platinum Bank, (“Lender”), in an amount to pay off all Indebtedness of the Seller, Targets and Acquired Companies, (the “Payoff Amount”), pursuant to a bank payoff letter or similar instrument provided by Lender no later than one (1) Business Day prior to the Closing Date and (ii) to Seller in an amount equal to the Purchase Price less the Payoff Amount to an account designated in writing by each such Seller (such designation to be made at least Buyer no later than two (2) Business Days prior to the Closing Date), Date (i) with respect to the Common Shares held by such Sellertogether, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b“Purchase Price Transaction”);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers Purchaser shall deliver to the Buyer certificates representing the SharesSellers (which shall receive such items on behalf of itself or its relevant Affiliates, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;as applicable):
(bi) the Buyer shall pay to each Seller Preliminary Purchase Price by wire transfer of immediately available funds to a bank an account of the Sellers’ Representative, for further payment to the other Sellers in accordance with the allocation set forth in Section 2.04(a)(i) of the Disclosure Schedules, designated in writing by each such Seller (such designation Sellers’ Representative to be made at least Purchaser no later than two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and ;
(ii) with respect the amounts contemplated to be paid at the Closing pursuant to the Preferred Shares held by such Seller, Stock Purchase Agreement (the product of (x) the Per “Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)Purchase Price”), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank an account of the Bank Affiliate of Sellers identified in the Preferred Stock Purchase Agreement, designated in writing by the Bank (such designation Affiliate or by Sellers’ Representative to be made at least Purchaser no later than two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(eiii) the Buyer shall deliver Preferred Stock Purchase Agreement substantially in the Escrow Amountform of Exhibit B (the “Preferred Stock Purchase Agreement”), including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreementduly executed by Purchaser;
(fiv) the Buyer shall deliver Preferred Stock Security Agreement substantially in the form of Exhibit C (the “Preferred Stock Security Agreement”), duly executed by wire transfer Purchaser;
(v) a joinder substantially in the form of immediately available funds Schedule A to the bank account designated in writing Intellectual Property Rights Agreement (as defined below), duly executed by Purchaser;
(vi) the Sellers’ Representative officer’s certificate required pursuant to Section 6.03(c); and (such designation vii) all other agreements, documents, instruments or certificates required to be made delivered by Purchaser at least two (2) Business Days or prior to the Closing Datepursuant to this Agreement.
(b) At the Sellers’ Representative Expenses AmountClosing, Sellers shall deliver to Purchaser:
(i) such documentation as may be reasonably required to evidence the transfer of the AMS Interests to Purchaser;
(gii) share transfer forms, business transfer agreements or other similar documentation, as required or as otherwise reasonably requested by Purchaser and, in each case, as mutually agreed by Sellers and Purchaser, with respect to the transfer of the Foreign Sub Shares of each of AMS Australia, AMS Brazil, AMS Canada and AMS Lux from Foreign Sub Seller to Purchaser or certain of its Affiliates and reflecting the allocations set forth in Section 2.02 of the Disclosure Schedules;
(iii) the Buyer shall deliver Transition Services Agreement substantially in the form of Exhibit D (the “AMS Transition Services Agreement”), duly executed by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital PartnersAMS and Aphrodite Women’s Health, LP LLC, a Delaware limited liability company (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b“Aphrodite”);
(hiv) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, Transition Services Agreement substantially in the aggregateform of Exhibit E (the “Reverse Transition Services Agreement”), to the Seller Transaction Expenses, as specified duly executed by the Company in accordance with Section 2.1(b); andeach of AMS and Aphrodite;
(iv) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, Transition Services Agreement substantially in the aggregateform of Exhibit F (the “Seller Transition Services Agreement”), to duly executed by each of AMS and Endo Pharmaceuticals Inc., an Affiliate of Sellers;
(vi) the Transaction Bonuses Preferred Stock Purchase Agreement, duly executed by each of Endo Pharmaceuticals Inc., a Delaware corporation, an Affiliate of Sellers and AMS Seller;
(vii) the Preferred Stock Security Agreement, duly executed by each of AMS Seller and Foreign Sub Seller;
(viii) the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to Intellectual Property Rights Agreement substantially in the proper third parties form of Exhibit G (the “Intellectual Property Rights Agreement”), duly executed by each of the AMS Seller, AMS and Aphrodite; (ix) the Contract Manufacturing Agreement substantially in accordance with all applicable Lawsthe form of Exhibit H (the “Contract Manufacturing Agreement”)., duly executed by each of AMS and Aphrodite;
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay or deliver or cause to each Seller be paid or delivered (as applicable):
(i) to Seller, the Estimated Purchase Price, less the (1) the Owned Real Property Purchase Price, and (2) Escrow Amounts, in the amounts and pursuant to the instructions set forth in the Estimated Closing Statement, by wire transfer of immediately available funds to a bank an account or accounts designated in writing by each such Seller the Sellers’ Representative to Buyer no later than three (such designation to be made at least two (23) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and ;
(ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with Agent, the last sentence of the definition of Closing Date Common Stock Cash Consideration; providedAdjustment Escrow Amount, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(fiii) to the Buyer shall deliver Escrow Agent, the Indemnity Escrow Amount, by wire transfer of immediately available funds in accordance with the terms of the Escrow Agreement;
(iv) to the Persons entitled thereto, the Transaction Expenses in the amounts and pursuant to the instructions set forth in the Estimated Closing Statement, by wire transfer of immediately available funds to the bank an account or accounts designated in writing by the Sellers’ Representative to Buyer no later than three (such designation to be made at least two (23) Business Days prior to the Closing Date; provided, however, that, any amounts treated as wages or compensation to a current or former employee of the Company Group shall be paid to the applicable member of the Company Group,(or to the applicable payroll provider of the Company Group), which shall pay the respective payee such amount, less applicable withholding Taxes, through the Company Group’s payroll system(s) or payroll provider(as applicable), and amounts paid as compensation to service providers who are not employees shall be treated as contributed to applicable members of the Sellers’ Representative Expenses AmountCompany Group and immediately thereafter paid by the applicable member of Company Group to such service providers, in each case, for federal Income Tax purposes;
(gv) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated Persons specified in writing by Avista Capital Partnerseach Payoff Letter, LP (the applicable Payoff Letter Amount pursuant to the wire instructions contained in such designation Payoff Letter, which shall be provided to be made Buyer at least two three (23) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);; and
(hvi) the Buyer shall deliver by wire transfer of immediately available funds to one all other agreements, documents, instruments or more bank accounts designated in writing by the Company (such designation certificates required to be made delivered by Buyer at least two (2) Business Days or prior to the Closing Datepursuant to Section 7.03 of this Agreement.
(b) amounts equalAt the Closing, the Selling Parties shall deliver to Buyer:
(i) membership interest certificates evidencing the Units, free and clear of all Encumbrances other than restrictions arising under applicable securities Laws, duly endorsed in the aggregateblank or accompanied by unit powers or other instruments of transfer duly executed in blank, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b)all required transfer tax stamps affixed thereto; and
(iii) the Buyer shall deliver by wire transfer of immediately available funds to one all other agreements, documents, instruments or more bank accounts designated in writing by the Company (such designation certificates required to be made delivered by Selling Parties at least two (2) Business Days or prior to the Closing Date) amounts equal, in the aggregate, pursuant to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Section 7.02 of this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (EnerSys)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers Seller shall or shall cause its subsidiaries, as applicable, to deliver to the Buyer Purchaser or its subsidiaries, as applicable, (i) certificates representing the SharesShares and the Foreign Shares (which delivery of the Foreign Shares shall be made in such jurisdictions as Seller may direct, provided that delivery in such jurisdictions results in no material incremental cost to Purchaser or its subsidiaries), duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;, with appropriate transfer tax stamps, if any, affixed and (ii) such other documents as Purchaser or its counsel may reasonably request to demonstrate satisfaction of the conditions and compliance with the covenants set forth in this Agreement; and
(b) the Buyer Purchaser shall pay or shall cause its subsidiaries, as applicable, to each deliver to Seller or its subsidiaries, as applicable, (i) payment, by wire transfer of immediately available funds to a bank account account(s) designated in writing by each such Seller (such designation to be made at least two (2) Business Days business days prior to the Closing Date), in immediately available funds of an amount equal to (iA) with respect to the Common Shares held by Purchase Price (B)(1) minus the absolute amount of Estimated Closing Net Debt, if Estimated Closing Net Debt is a negative number or (2) plus the absolute amount of Estimated Closing Net Debt, if Estimated Closing Net Debt is a positive number, and (C)(1) plus the absolute amount of the Estimated Working Capital Adjustment, if the Estimated Working Capital Adjustment is a positive number or (2) minus the absolute amount of the Estimated Working Capital Adjustment, if the Estimated Working Capital Adjustment is a negative number (such Selleramount, the product of (x) the Per Common Share “Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)Amount”) and (ii) with respect such other documents as Seller or its counsel may reasonably request to demonstrate satisfaction of the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance conditions and compliance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made covenants set forth in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow this Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Sources: Stock Purchase Agreement (Brinks Co)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer, with appropriate transfer Tax stamps, if any, affixed;
(b) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, sum of the product of (xi) the Per Common Share Closing Date Cash Consideration, if any, Price multiplied by (yii) the Common number of Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) Annex A attached hereto (as the same may be updated prior hereto; provided, further that, notwithstanding anything to the Closing contrary contained herein, any portion of the Estimated Purchase Price attributable to a Special Adjustment shall be payable in accordance with Section 2.1(b)) and either cash or Buyer’s Stock (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on which shall be valued at the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached heretoValue), in the Buyer’s sole and absolute discretion;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank Company by wire transfer of immediately available funds to such bank account of the Bank Company designated in writing by the Bank Company (such designation to be made at least two (2) Business Days prior to the Closing) an amount equal to the Aggregate Option Consideration;
(d) the Company shall pay to each Optionholder (at the Company’s option, by wire transfer of immediately available funds, check or direct deposit) an amount equal to such Optionholder’s allocable portion of the Aggregate Option Consideration in accordance with Section 2.4 herein; provided that with respect to each Option, the amount paid to an Optionholder shall be reduced by all applicable Withholding Amounts, if any, with respect to the exercise of the underlying Option in accordance with Section 2.4 herein; provided, further that, notwithstanding anything to the contrary contained herein, any portion of the Estimated Purchase Price attributable to a Special Adjustment shall be payable in either cash or Buyer’s Stock (which shall be valued at the Closing Date Value), in the Buyer’s sole and absolute discretion;
(e) the Buyer shall deliver to the Company by wire transfer of immediately available funds to such bank account of the Company designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Agreements Payoff Amount;
(ef) The Company shall pay the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, Credit Agreements Payoff Amount to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses AmountBank;
(g) the Buyer shall deliver to the Company by wire transfer of immediately available funds to the such bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by of the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, an amount sufficient to the Seller Transaction Expenses, as specified by pay the Company in accordance with Section 2.1(b); andExpenses;
(h) the Company shall pay the Company Expenses;
(i) the Buyer shall deliver (a) the Buyer’s Stock to be held in the Indemnity Escrow Fund and (b) the Purchase Price Adjustment Escrow Amount by wire transfer of immediately available funds to one or more the Escrow Agent; and
(j) the Sellers party to the Subscription Agreement shall deliver by wire transfer by immediately available funds to such bank accounts account of the Buyer designated in writing by the Company Buyer (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equalan aggregate amount equal to $35,000,000, in the aggregate, to the Transaction Bonuses (and the Company which amount shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Lawsbe allocated as set forth on Schedule 2.2(j).
Appears in 1 contract
Sources: Stock Purchase Agreement (MBF Healthcare Acquisition Corp.)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers Company shall deliver to Seller and Purchaser counterparts of each of the Buyer Ancillary Agreements to be entered into by the Company at the Closing, duly executed by the Company;
(b) Seller shall:
(i) deliver to Purchaser certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer, with appropriate Transfer Tax stamps, if any, affixed; and
(ii) deliver to Purchaser and the Company counterparts of each of the Ancillary Agreements to be entered into by Seller at the Closing, duly executed by Seller and, if party thereto, Parent;
(bc) the Buyer shall pay Purchaser shall:
(i) deliver to each Seller payment, by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) four Business Days prior to the Closing Date), of immediately available funds in U.S. dollars in an amount (isuch amount, the “Estimated Payment Amount”) equal to the sum of (A) the product of (1) Estimated Closing Book Value multiplied by (2) the Agreed Multiple, (B) $10 million and (C) the Estimated Adjustment Amount, if any. In the event that the Estimated Closing Book Value is less than the Reference Book Value, Seller may, at its option, transfer to the Company immediately prior to Closing an amount in Cash equal to the difference between the Reference Book Value and the Estimated Closing Book Value and, upon receipt of such amount by the Company, such Cash shall be taken into account as an asset in determining the Estimated Closing Book Value for the purpose of calculating the Estimated Payment Amount payable under this Section 1.03 and the Closing Date Book Value for the purpose of calculating the Final Purchase Price as determined pursuant to Section 1.04. In the event that the Estimated Closing Book Value is greater than the Reference Book Value (the amount of such excess, the “Estimated Book Value Excess Amount”) and Seller, Parent or any subsidiary thereof (other than the Company or any Subsidiary) has contributed Cash to the Company or any Subsidiary after the date hereof and prior to the Closing Date (other than, for the avoidance of doubt, Cash contributed to the Company or any Subsidiary in exchange for the fair market value of the Reorganization Assets (including the Closing Date Reorganization Value) or the Extracted Entities (including the Extracted Entity Value) or in respect of any Parent Covers), then an amount (the “Estimated Adjustment Amount”) equal to (x) the aggregate amount of any Cash contributed to the Company or any Subsidiary after the date hereof and prior to the Closing Date (other than, for the avoidance of doubt, Cash contributed to the Company or any Subsidiary in exchange for the fair market value of the Reorganization Assets (including the Closing Date Reorganization Value) or the Extracted Entities (including the Extracted Entity Value) or in respect of any Parent Covers) by Seller, Parent or any subsidiary thereof (other than the Company or any Subsidiary), if any (the aggregate amount of such contribution, the “Estimated Contribution Amount”), or (y) in the event that the Estimated Contribution Amount exceeds the Estimated Book Value Excess Amount, the Estimated Book Value Excess Amount, shall be excluded as an asset in determining the Estimated Closing Book Value for the purpose of calculating the Estimated Payment Amount payable under Section 1.03 and the Closing Date Book Value for the purpose of calculating the Final Purchase Price as determined pursuant to Section 1.04 and shall instead be included in the Estimated Payment Amount pursuant to clause (C) of the definition thereof; and
(ii) deliver to Seller and the Company counterparts of each of the Ancillary Agreements to be entered into by Purchaser at the Closing, duly executed by Purchaser and, if party thereto, CMI;
(d) Seller shall permit the Letter of Credit to be withdrawn by the Purchaser;
(e) the Company and the Subsidiaries shall (to the extent not previously transferred) sell, transfer and deliver the Reorganization Assets to Seller or any of its affiliates (other than the Company and the Subsidiaries) in exchange for immediately available funds in U.S. dollars in an amount equal to the Closing Date Reorganization Value reflected in the calculation of the Estimated Closing Book Value;
(f) in the event that the conditions set forth in Article VI have been satisfied and the Company or any Subsidiary holds any of the entities listed on Section 1.03(f) of the Company Disclosure Letter (such entities the “Run-Off Entities”), the Company and the Subsidiaries shall sell, transfer and deliver any Run-Off Entities then held by the Company or any Subsidiary to Seller or any of its affiliates (other than the Company and the Subsidiaries) in exchange for immediately available funds in U.S. dollars in an amount equal to the amount set forth on Section 1.03(f) of the Company Disclosure Letter with respect to the Common Shares held by such Sellerapplicable Run-Off Entity (collectively, the product “Run-Off Entity Value”), and, in connection therewith, Seller and the Company shall cause Sirius Re Holdings, Inc. to execute and deliver a guarantee (in the form customarily provided by the Company or its applicable Subsidiary in connection with similar transactions by White Mountains Solutions Holding Company and as is anticipated to be provided in connection with the sale of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior Run-Off Entities pursuant to the Closing in accordance with Section 2.1(b)respective Run-Off Entity SPA) to Parent for liabilities and (ii) with respect to obligations of the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached heretoRun-Off Entities;
(cg) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form event that the conditions set forth in Article VI have been satisfied and Regulatory Approvals from the Insurance Regulators in the State of shares Tennessee have not been obtained (or have not been obtained without the imposition of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(da Burdensome Condition) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) four Business Days prior to the Closing Date, the Company and the Subsidiaries shall sell, transfer and deliver the entity listed on Section 1.03(g) of the Company Disclosure Letter (such entity, the “Solutions Entity”) to Seller or any of its affiliates (other than the Company and the Subsidiaries) in exchange for immediately available funds in U.S. dollars in an amount equal to the Credit Agreement Outstanding Payoff Amount;
fair market value (eas reasonably determined by Seller) of such entity (the Buyer “Solutions Entity Value”), and, in connection therewith, Seller and the Company shall cause Sirius Re Holdings, Inc. to execute and deliver a guarantee (in the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified form customarily provided by the Company or its applicable Subsidiary in accordance connection with similar transactions by White Mountains Solutions Holding Company) to Parent for liabilities and obligations of the Solutions Entity (which guarantee shall survive the termination of the obligations under Section 2.1(b5.15);
(h) in the Buyer event that the conditions set forth in Article VI have been satisfied and Regulatory Approvals from the Insurance Regulators in Hong Kong have not been obtained (or have not been obtained without the imposition of a Burdensome Condition), the Company and the Subsidiaries shall sell, transfer and deliver by wire transfer the entity listed on Section 1.03(h) of the Company Disclosure Letter (such entity, the “JV Entity” and, together with the Run-Off Entities and the Solutions Entity, the “Extracted Entities”) to Seller or any of its affiliates (other than the Company and the Subsidiaries) in exchange for immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior U.S. dollars in an amount equal to the Closing Datefair market value (as reasonably determined by Seller) amounts equalof such entity (the “JV Entity Value” and, in together with the aggregateRun-Off Entity Value and the Solutions Entity Value, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b“Extracted Entity Value”); and.
(i) the Buyer Pursuant to Section 1.05, Seller shall deliver by wire transfer of immediately available funds to one or more bank accounts designated Purchaser an amount in writing by the Company (such designation to be made at least two (2) Business Days prior Cash equal to the Closing Date) amounts equalSeller Settlement Amount, in the aggregateif any, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect deliver to such Transaction Bonuses Seller an amount in Cash equal to the proper third parties in accordance with all applicable Laws)Company Settlement Amount, if any.
(j) All payments made pursuant to this Section 1.03 may be applied to offset any other payment required under this Section 1.03.
Appears in 1 contract
Sources: Stock Purchase Agreement (White Mountains Insurance Group LTD)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers Purchaser shall deliver or cause to the Buyer certificates representing the Sharesbe delivered to Seller and Intermediate Holdco, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller payment by wire transfer of immediately available funds to a bank account accounts designated in writing by each such Seller (such designation to be made and Intermediate Holdco at least two (2) Business Days prior to the Closing Date), (i) with respect an aggregate amount equal to the Common Shares held by such Seller, the product of (x) the Per Common Share Initial Closing Date Cash ConsiderationAmount minus the Initial Unfunded Employee Liability Amount (with such aggregate amount to be split between such bank accounts as designated in writing by Seller);
(b) Seller and Intermediate Holdco shall deliver to Purchaser any certificates representing any certificated Transferred Equity Interests and customary instruments of transfer and assignment of the Transferred Equity Interests, if anyin form and substance reasonably satisfactory to Purchaser, multiplied duly executed by (y) the Common Shares outstanding on the Closing Date owned by such Seller or Intermediate Holdco, as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached heretoapplicable;
(c) the Buyer Seller shall deliver or cause to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to Purchaser the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder certificate(s) required to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up delivered pursuant to the nearest whole share; andSection 5.07(e) (Tax Certificates);
(d) the Buyer Seller shall deliver to Purchaser the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation certificate required to be made at least two delivered pursuant to Section 6.02(c) (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff AmountSeller Certificate);
(e) the Buyer Purchaser shall deliver to Seller the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent certificate required to be held and disbursed in accordance with the terms of the Escrow Agreementdelivered pursuant to Section 6.03(c) (Purchaser Certificate);
(f) the Buyer Purchaser shall deliver to Seller, and Seller shall deliver to Purchaser, the Escrow Agreement, duly executed by wire transfer of immediately available funds to Purchaser, Seller and the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;Escrow Agent, respectively; and
(g) the Buyer Seller shall deliver by wire transfer to Purchaser evidence reasonably satisfactory to Purchaser of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to release and termination effective as of the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) any Liens (other than Permitted Liens) on the Buyer shall deliver Transferred Equity Interests, the Companies or any of their assets and (ii) any and all guarantees of indebtedness for borrowed money provided by wire transfer any of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Companies.
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the parties:
(ai) The Company shall deliver to ATI (A) the Sellers Assumption Agreement in the form attached hereto as Exhibit B relating to the ATI Assumed Liabilities (the "ATI ASSUMPTION AGREEMENT") and (B) certificates in definitive form registered in the name of ATI, evidencing the ATI Shares and the ATI Nuklear Shares (as directed by ATI Nuklear in Section 1.01);
(ii) The Company shall deliver to ATI Nuklear the Assumption Agreement in the form attached hereto as Exhibit C relating to the ATI Nuklear Assumed Liabilities (the "ATI NUKLEAR ASSUMPTION AGREEMENT" and, together with the ATI Assumption Agreement, the "ANCILLARY AGREEMENTS");
(iii) The Company shall deliver to S▇▇▇▇▇▇▇▇ certificates in definitive form registered in the name of S▇▇▇▇▇▇▇▇, evidencing the S▇▇▇▇▇▇▇▇ Shares;
(iv) The Company shall deliver to G▇▇▇▇▇ certificates in definitive form registered in the name of G▇▇▇▇▇, evidencing the G▇▇▇▇▇ Shares;
(v) ATI shall deliver to the Buyer certificates representing Company a B▇▇▇ of Sale in the Shares, duly endorsed form attached hereto as Exhibit D relating to the ATI Assets (the "ATI B▇▇▇ OF SALE");
(vi) ATI Nuklear shall deliver to the Company a B▇▇▇ of Sale in blank or accompanied by stock powers duly endorsed the form attached hereto as Exhibit E relating to the ATI Nuklear Assets (the "ATI NUKLEAR B▇▇▇ OF SALE");
(vii) S▇▇▇▇▇▇▇▇ shall deliver to the Company a check in blank the amount of $1; and
(viii) G▇▇▇▇▇ shall deliver to the Company a check in proper form for transfer;the amount of $1.
(b) Each certificate representing the Buyer Shares and any other securities issued in respect of the Shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall pay to each Seller by wire transfer (unless otherwise permitted or unless the shares of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held Stock evidenced by such Seller, certificate shall have been registered under the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto Securities Act (as the same may be updated prior to the Closing in accordance with Section 2.1(bhereinafter defined)) and (ii) be stamped or otherwise imprinted with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made legend substantially in the following form of shares of Buyer Common Stock shall be made only (in whole sharesaddition to any legend required under applicable state securities laws): "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. THESE SHARES MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow AmountOR NOT SUBJECT TO, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)SUCH REGISTRATION."
Appears in 1 contract
Sources: Stock Subscription Agreement (Advanced Technology Industries Inc)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers each LRPHI Stockholder shall deliver to the Buyer Purchaser (i) certificates representing the SharesLRPHI Stock owned by such LRPHI Stockholder, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;, with appropriate transfer tax stamps, if any, affixed and (ii) such other documents as Purchaser or its counsel may reasonably request to transfer legal and beneficial title to the LRPHI Stock owned by such LRPHI Stockholder; and
(b) each Individual Seller shall deliver to Purchaser (i) an assignment of such Individual Seller’s Membership Interests executed by such Individual Seller and (ii) such other documents as Purchaser or its counsel may reasonably request to transfer legal and beneficial title to the Buyer shall pay to Membership Interests held by such Individual Seller; and
(c) each Seller shall deliver to Purchaser a properly prepared and executed certificate of non-foreign status under Treas. Reg. §1.1445-2(b)(2) that establishes (to the reasonable satisfaction of Purchaser) that no withholding is required under Section 1445 of the Code and a properly prepared and certified IRS Form W-9 claiming complete exemption from U.S. backup withholding; and
(d) Purchaser shall deliver to Sellers’ Representative, on behalf of Sellers, payment, by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days business days prior to the Closing Date), in an amount equal to (i) (A) the Purchase Price, minus (B) the Escrowed Funds, minus (C) the Bonus Amount, minus (D) the Warrant Payment, plus or minus (ii) an estimate, prepared by the Company in good faith and delivered to Purchaser at least two business days prior to the Closing Date of any adjustment to the Purchase Price under Section 1.04 (the Purchase Price plus or minus such estimate of any adjustment under Section 1.04 being hereinafter called the “Closing Date Amount”); and
(e) Purchaser shall deposit $13,250,000 (together with interest earned thereon as provided in the Escrow Agreement, the “Escrowed Funds”) by wire transfer of immediately available funds into an escrow account (the “Escrow Account”) established pursuant to the terms and conditions of an escrow agreement (the “Escrow Agreement”) by and among Purchaser, Sellers’ Representative Expenses Amount;and JPMorgan Chase Bank, N.A., as escrow agent (the “Escrow Agent”), substantially in the form and substance of Exhibit A, to be distributed in accordance with the terms of this Agreement and the Escrow Agreement; and
(gf) the Buyer Purchaser shall deliver pay by wire transfer of immediately available funds to the a bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days business days prior to the Closing Date) amounts equal), the amount, as set forth in the aggregate, a written notice delivered by Sellers’ Representative to Purchaser at least two business days prior to the Seller Transaction ExpensesClosing Date, as specified required to be paid pursuant to the phantom equity awards listed in Section 3.03(a) of the Disclosure Letter and any other bonuses, change of control or similar payments permitted or consented to by Purchaser pursuant to Section 5.01 and payable by the Company or any Subsidiary at Closing in accordance connection with Section 2.1(bthe transactions contemplated by this Agreement (collectively, the “Bonus Amount”), and the Purchaser shall cause the Bonus Amount to be distributed to each individual entitled to receive their applicable share of the Bonus Amount (as specified in the written notice described above) through the payroll systems of the Company no later than the regularly scheduled payroll date occurring on or after the Closing Date; and
(ig) the Buyer Purchaser shall deliver pay by wire transfer of immediately available funds to one or more a bank accounts account designated in writing by the Company Sellers’ Representative or Aritas Group, Inc. (such designation to be made at least two (2) Business Days business days prior to the Closing Date) amounts equal), the amount (the “Warrant Payment”), as set forth in the aggregate, a written notice delivered by Sellers’ Representative to Purchaser at least two business days prior to the Transaction Bonuses Closing Date, of the Warrant Payment (and as defined in that certain Warrant Termination Agreement between the Company and Aritas Group, Inc., dated September 21, 2015 (the “Warrant Termination Agreement”)); and
(h) Purchaser and Sellers shall timely remit all applicable withholding obligations with respect to make such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)other deliveries as are required by Article VI.
Appears in 1 contract
Sources: Securities Purchase Agreement (Factset Research Systems Inc)
Transactions to be Effected at the Closing. At the Closing, the following transactions shall be effected by the partieseffected:
(a) the Sellers The Buyer shall deliver or, to the Buyer certificates representing the Sharesextent such amounts are to be funded with Refinancing Proceeds in accordance with Section 3.4(c), duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;cause to be delivered:
(bi) to the Buyer shall pay to each Seller Seller, (A) by wire transfer of immediately available funds to a such bank account or bank accounts designated in writing by each such the Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect an amount in cash equal to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any(B) certificates or, multiplied by (y) at the Seller’s request, evidence of shares in book-entry form representing the number of newly-issued Buyer Common Shares outstanding on to which the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior is entitled pursuant to the Closing in accordance with Section 2.1(b)3.2(b) and (iiC) with respect to certificates or, at the Preferred Shares held by such Seller’s request, the product evidence of (x) the Per Preferred Share Cash Consideration multiplied by (y) shares in book-entry form representing the number of newly-issued Buyer Preferred Shares outstanding on to which the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached heretois entitled pursuant to Section 3.2(c);
(cii) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (xapplicable lender(s) under the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)Existing Credit Facility or its designee(s), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of or bank accounts as set forth in the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) Payoff Letters, an amount equal to the Credit Agreement Outstanding Facility Payoff Amount;
(eiii) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent parties entitled thereto, by wire transfer of immediately available funds, the Closing Company Expenses, the Closing Buyer Expenses and any other Transaction Expenses to be held and disbursed in accordance with paid at the terms of the Escrow AgreementClosing;
(fiv) to the Buyer shall deliver Seller’s Representative, by wire transfer of immediately available funds to the such bank account or bank accounts designated in writing by the Sellers’ Seller’s Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) ), an amount equal to the Sellers’ Seller’s Representative Expenses Holdback Amount;; and
(gv) to the Seller or the Seller’s Representative, as applicable, all of the documents required to be delivered by the Buyer, Merger Sub I and/or Merger Sub II LLC pursuant to Article 9, duly executed by the Buyer, Merger Sub I and/or Merger Sub II LLC, as applicable.
(b) The Company shall deliver to the Buyer (i) concurrently with the delivery of the Estimated Closing Statement, payoff letters (the “Payoff Letters”) from the lender(s) under the Existing Credit Facility which authorize the release (or, to the extent that the collateral for the Existing Credit Facility is to secure the Replacement Credit Facility, the amendment) of all Encumbrances securing the Existing Credit Facility upon payment in full of the Credit Facility Payoff Amount (which Payoff Letters shall be in customary form) and (ii) all of the documents required to be delivered by the Seller, the Seller’s Representative and/or the Company pursuant to Article 8, duly executed by the Seller, the Seller’s Representative and/or the Company, as applicable.
(c) The Company shall cause the Refinancing Proceeds to be available at Closing in an amount sufficient to pay, and the parties shall cause the Refinancing Proceeds to be used for the purposes of paying, (i) Transaction Expenses, and (ii) any increase in Cash Consideration in respect of any Working Capital Overage.
(d) The Seller shall deliver by wire transfer of immediately available funds to the bank account designated Buyer:
(i) certificates, if any, representing all of the Company Common Units owned by the Seller, duly endorsed in writing blank or accompanied by Avista Capital Partnerslimited liability company interest powers duly endorsed in blank in proper form for transfer, LP with appropriate transfer Tax stamps, if any, affixed or, if the Seller is unable to surrender such certificates because such certificates have been lost, mutilated or destroyed, an affidavit of loss; and
(such designation to be made ii) at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by a good faith estimate of the Company in accordance with Section 2.1(b);Expenses (the “Closing Company Expenses”) and any copies of invoices related thereto.
(he) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at At least two (2) Business Days prior to the Closing Date, the Buyer shall deliver to the Seller’s Representative and the Company a certificate setting forth Buyer’s good faith estimate of (i) amounts equalthe aggregate amount of cash proceeds that will be required to satisfy any exercise of the Buyer Stockholder Redemptions as of the Closing, in (ii) the aggregateamount of Available Cash, (iii) the number of Buyer Common Shares and Buyer Preferred Shares outstanding as of the Closing after giving effect to the Buyer Stockholder Redemptions, the issuance of Buyer Common Shares and Buyer Preferred Shares to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and3.4(a)(i) and the issuance of any other capital stock or security issued in accordance with Section 7.2(b) and (iv) the fees and expenses described in clause (b) of the definition of Transaction Expenses (the “Closing Buyer Expenses”) and any copies of invoices related thereto.
(i) At or as promptly as practicable following the Closing, the Buyer shall deliver reimburse the Seller, by wire transfer of immediately available funds to one such bank account or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days Seller, for any Transaction Expenses paid by the Seller prior to the Closing Date) amounts equal, Adjustment Time in full satisfaction of any liability for payment from the aggregate, to the Transaction Bonuses (Company and the Company shall timely remit all applicable withholding obligations Subsidiaries with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)thereto.
Appears in 1 contract
Sources: Agreement and Plan of Merger (M III Acquisition Corp.)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) deliver to the Seller: (A) the Sellers Closing Date Cash Payment by wire transfer of immediately available funds to an account designated in writing by the Seller to the Buyer no later than five Business Days prior to the Closing Date; (B) certificates representing the Parent Shares constituting the Closing Date Stock Consideration or evidence that such Parent Shares have been issued in book entry form from Continental Stock Transfer & Trust Company, the transfer agent of the Parent, in the name of the Seller; and (C) the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by the Buyer at or prior to the Closing pursuant to Section 8.03 of this Agreement;
(ii) pay, on behalf of the Company, the Stockholders or the Seller, as applicable, the following amounts: (A) the Estimated Indebtedness to be paid at Closing, by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Indebtedness Certificate; and (B) the Estimated Transaction Expenses, by wire transfer of immediately available funds to the accounts and in the amounts specified on the Closing Transaction Expenses Certificate; and
(iii) deliver to the Escrow Agent: (A) the Escrow Amount by wire transfer of immediately available funds to accounts designated by the Escrow Agent, to be held for the purpose of securing the obligations of the Stockholders and the Seller in Section 7.08 and ARTICLE IX; and (B) the Escrow Agreement.
(b) At the Closing, the Stockholders and the Seller shall deliver to the Buyer Buyer:
(i) stock certificates representing evidencing the Shares, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly endorsed executed in blank in proper form for transfer;blank, with all required stock transfer tax stamps affixed thereto; and
(bii) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation Ancillary Documents and all other agreements, documents, instruments or certificates required to be made delivered by the Stockholders and the Seller at least two (2) Business Days or prior to the Closing Date), (i) with respect pursuant to the Common Shares held by such Seller, the product Section 8.02 of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow this Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions Buyer shall be effected by the partiesdeliver to Seller:
(ai) the Sellers shall deliver Cash Consideration, or proof of payment of Cash Consideration;
(ii) the Transaction Documents and all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transferClosing pursuant to Section 7.03 of this Agreement;
(b) At the Buyer Closing, Seller shall pay deliver to each Seller by wire transfer Buyer:
(i) An executed copy of immediately available funds to a bank account designated the Stock Power and Assignment of Uncertificated Shares in writing by each such Seller the form of Exhibit A hereto;
(such designation ii) the Transaction Documents and all other agreements, documents, instruments or certificates required to be made delivered by Seller and the Company at least two (2) Business Days or prior to the Closing Date), pursuant to Section 7.02 of this Agreement.
(iiii) with respect The Seller shall furnish to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding Buyer on or before the Closing Date owned true and complete copies of the unaudited balance sheet of the Company as of December 31, 2022, and the related statements of operations and cash flows for the year then ended (the “Financial Statements”), setting forth in each case in comparative form the corresponding figures for the corresponding dates and periods of the previous fiscal year, together with reports of auditors thereon.
(iv) The Seller hereby agrees to deliver to Buyer within 30 days of the date hereof those due diligence items (“Due Diligence Items”) requested by such Seller as listed on Schedule 4.5(aBuyer or set forth herein. Buyer shall have until the receipt of all Due Diligence Items, completion of the Financial Statements and thirty (30) attached hereto days thereafter (as “Due Diligence Period”) to review and to approve the same may be updated Due Diligence Items and any other information or documentation it acquires, including, but not limited to the Financial Statements. If Buyer, in its sole discretion, does not approve any of the Due Diligence Items or any of the information provided to Buyer pursuant to this section or any information or documentation it otherwise acquires at any time prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to expiration of the Preferred Shares held by such SellerDue Diligence Period, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificatedBuyer, at each Seller’s electionits option, equal may terminate this Agreement by written notice to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated delivered at any time prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence expiration of the definition Due Diligence Period, whereupon this Agreement shall become null and void and of Closing Date Common Stock Cash Consideration; providedno further force and effect and the parties hereto shall have no further obligation to one another. However, that any payment hereunder to be made in lieu of such immediate termination of this Agreement, Buyer may at its option notify the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated Seller in writing by of those matters as to which it has reasonable concerns and extend the Bank Due Diligence Period as to those items only for a period of an additional thirty (30) days in order to give the parties the opportunity to resolve such designation concerns. Buyer’s failure to be made at least two (2) Business Days prior terminate this Agreement pursuant to this Section 2.03 shall not affect Buyer’s right to require the Closing Date) an amount equal satisfaction of all conditions to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed closing set forth in accordance with the terms of the Escrow this Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Sources: Stock Purchase Agreement (American International Holdings Corp.)
Transactions to be Effected at the Closing. (a) The Purchaser shall deliver to the Seller:
(i) at the Closing, the Transaction Documents and all other agreements, documents, instruments or certificates required to be delivered by the Purchaser at or prior to the Closing pursuant to Section 9 of this Agreement;
(ii) after the ROFR Closing Date, such number of shares of the Acquisition Stock as are not purchased by the ROFR Stockholders, if any; and
(iii) after the ROFR Closing Date, $4.30 per share of Acquisition Stock as is purchased by the ROFR Stockholders, if any, in cash or other immediately available funds.
(b) At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers Seller shall deliver to the Buyer Purchaser:
(i) stock certificates representing evidencing the SharesAcquired Stock, free and clear of all Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly endorsed executed in blank in proper form for transfer;blank, with all required stock transfer tax stamps affixed thereto; and
(bii) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation Transaction Documents and all other agreements, documents, instruments or certificates required to be made delivered by the Seller and/or the Company at least two (2) Business Days or prior to the Closing pursuant to Section 8 of this Agreement.
(c) On or promptly after the Closing, the Purchaser shall deliver to the ROFR Stockholders, a notice regarding their rights to purchase shares of the Acquisition Stock. Pursuant to such notice, the ROFR Stockholders shall have 15 days to elect to purchase Acquisition Stock and, if some but not all of the ROFR Stockholders elect to purchase shares of Acquisition Stock, those electing shall have an additional 10-day period to elect to purchase any remaining shares of Acquisitions Stock. For purposes of this Agreement, the “ROFR Closing Date), ” shall mean the later to occur of (i) with respect the date upon which such notice periods shall have expired and none of the ROFR Stockholders shall have exercised their rights to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) purchase Acquisition Stock and (ii) with respect to the Preferred Shares held by such Seller, date upon which the product of (x) Purchaser shall have received the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of full purchase price for all shares of Buyer Common Stock, Acquisition Stock which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product ROFR Stockholders shall have exercised their rights of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)first refusal.
Appears in 1 contract
Sources: Stock Purchase Agreement (Monterey Capital Acquisition Corp)
Transactions to be Effected at the Closing. At (a) On or prior to the ClosingClosing Date, the following transactions shall be effected by the partieseffected:
(ai) The Buyer shall deliver to the Sellers Seller one or more stock certificates representing the Buyer Shares, duly executed by authorized officers of the Buyer.
(ii) The Seller shall deliver to the Buyer one or more stock certificates representing the Seller Shares, duly endorsed executed by authorized officers of Giant.
(iii) This Agreement and all other agreements, documents, instruments or certificates required to be delivered on the Closing Date by the respective parties shall be delivered at or prior to the Closing Date in blank accordance with the terms hereof.
(iv) On and as of the Closing Date, GIANT shall have sufficient cash and working capital to allow GIANT to operate in the ordinary course of business consistent with past practices. Further, sufficient cash shall be available on the date of Closing to pay federal and state income taxes on taxable income through the date of Closing. Notwithstanding anything to the contrary in this Agreement, the Buyer and the Seller acknowledge and agree that if the Seller determines, in its reasonable discretion, that GIANT requires additional cash on the Closing Date for the condition in the immediately preceding sentence to be satisfied, then the Sellers may promptly contribute a portion of the proceeds of the Purchase Price (after receipt thereof from the Buyer) to GIANT to ensure that such condition will be satisfied after giving effect to any such contribution, without violating this Section 1.05(a)(iv).
(v) The amount of working capital and taxes due to be available on the date of Closing shall be mutually agreed upon by the Sellers and Buyer, but in no event, shall the amount of working capital available at closing be less than the amount of working capital on Giant’s balance sheet as of the date of execution of this Agreement.
(vi) Buyer shall confirm and acknowledge to Sellers that F▇▇▇▇ ▇▇▇▇▇▇▇ receive the following compensation in connection with his position as the General Manager of Giant consistent with his past compensation.
(vii) F▇▇▇▇ ▇▇▇▇▇▇▇ and A▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be required to execute a non-compete agreement agreeing not to compete in a similar business of the Buyer. The term of the non-compete agreement shall be for a period of not less than 5 years commencing upon the termination of his employment contract with the Buyer and shall contain such other provisions as shall be mutually agreed upon prior to Closing.
(viii) Sellers and the Giant shall sell and assign all their Intellectual Property Rights for the Product in the Territory to Purchaser, and Buyer shall immediately assume all future expenses related to the prosecution and maintenance of Intellectual Property Rights for the Products in the Territory. In the event Buyer requests the assistance of Sellers and in the prosecution and maintenance of the Intellectual Property Rights for the Product in the Territory, Sellers and the Giant Beverage shall so cooperate with Purchaser.
(ix) Sellers and Giant shall provide Buyer and convey the following assets of Giant with copies of all current hard and soft marketing, contacts, suppliers, email database, software, hardware and website including domain names backend materials available in Sellers’s possession relating to websites listed in Exhibit__ in the Territory on or accompanied by stock powers duly endorsed prior to closing the Transaction.
(x) Post-closing, F▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall assume the position of Chief Executive Officer of Giant.
(xi) The Buyer shall execute a lease agreement for a term of 5 years with Iemmiti & Iemmiti, LLC as the Lessor for 3 of the 4 units located at 1▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, obligating the Buyer to pay monthly rent of $8,500 on the lst of each month beginning on _____, 2017 (and an amount reflecting the pro-rated month for the time period between signing this Purchase Agreement and the lst of the next month), which monthly lease amount shall be subject to a 2 ½ % increase each succeeding year of said lease.
(xii) The Buyer shall assume the credit card and all supplier’s debt in blank in proper form for transfer;the amount of $165,119 and $107,235, respectively, as reflected on the balance sheet of the Seller as of July 31, 2017.
(xiii) F▇▇▇▇ ▇▇▇▇▇▇▇ and A▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall each execute the Non-Competition, Non-Solicitation and Non-Disclosure Agreements attached here to as Exhibits _.
(b) As of the Closing, in the event that there is an adjustment to the Balance Sheet of the Seller as of July 31, 2017, i.e. higher or lower liabilities or higher or lower assets than previously agreed to by the Buyer and the Seller, the Seller shall pay hold back the Note until there is an appropriate adjustment to each the Note on a dollar for dollar basis thereby increasing or decreasing the principal amount of the Note due from Hispanica to F▇▇▇▇ ▇▇▇▇▇▇▇ and A▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as the circumstances dictate. If the liabilities are higher or lower than 5% when comparing the July 31, 2017 balance sheet, there shall be no such adjustment.
(c) Should there be new payables due after the Closing that the Seller by wire transfer failed to disclose to the Buyer, there shall be corresponding decreases on a dollar for dollar basis in the Share Consideration.
(d) The Closing is further subject to the satisfaction or waiver of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days the following conditions on or prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account of the Bank designated in writing by the Bank (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).:
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Hispanica International Delights of America, Inc.)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the partiesBuyer shall:
(ai) deliver to Sellers or Seller Representative (as applicable):
(A) the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller Closing Date Payment by wire transfer of immediately available funds to a bank account one or more accounts designated in writing by each such Seller (such designation Representative to be made at least Buyer no later than two (2) Business Days prior to the Closing Date), ; and
(i) with respect to the Common Shares held by such Seller, the product of (xB) the Per Common Share Closing Date Cash ConsiderationAncillary Documents and all other agreements, if anydocuments, multiplied instruments or certificates required to be delivered by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated Buyer at or prior to the Closing in accordance with pursuant to Section 2.1(b)) and 9.03 of this Agreement.
(ii) with respect pay, on behalf of the Company or Sellers, the following amounts:
(A) Indebtedness of the Company to be paid at Closing, by wire transfer of immediately available funds, to the Preferred Shares held by such Seller, accounts and in the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding amounts specified on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;Indebtedness Certificate; and
(cB) the Buyer shall deliver to each Seller a number all Transaction Expenses, by wire transfer of shares of Buyer Common Stockimmediately available funds, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of (x) accounts and in the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding amounts specified on the Closing Date owned by such Seller as listed on Schedule 4.5(aTransaction Expenses Certificate.
(iii) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)), less any shares of Buyer Common Stock delivered deliver to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank Escrow Amount by wire transfer of immediately available funds to accounts designated by the Escrow Agent, to be held for the purpose of securing the indemnification obligations of Sellers set forth in ARTICLE X and the obligations of Sellers in Section 8.08 (such bank account amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Escrow Fund”).
(b) At the Closing, Sellers shall deliver to Buyer:
(i) an Assignment of Membership Interests (each, an “Interest Assignment”), transferring the Interests of the Bank designated in writing Seller Party, free and clear of all Encumbrances, duly executed by such Seller; and
(ii) fully executed originals of this Agreement and each of the Bank (such designation Ancillary Documents to which a Seller Party is a party, and all other agreements, documents, instruments or certificates required to be made executed and/or delivered by such Seller Party at least two (2) Business Days or prior to the Closing Date) an amount equal pursuant to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares Section 9.02 of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow this Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(i) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Gse Systems Inc)
Transactions to be Effected at the Closing. (a) At the Closing, the following transactions shall be effected by the parties:
(a) the Sellers shall deliver to the Buyer certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer;
(b) the Buyer shall pay to each Seller by wire transfer of immediately available funds to a bank account designated in writing by each such Seller (such designation to be made at least two (2) Business Days prior to the Closing Date), (i) with respect to the Common Shares held by such Seller, the product of (x) the Per Common Share Closing Date Cash Consideration, if any, multiplied by (y) the Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b)) and (ii) with respect to the Preferred Shares held by such Seller, the product of (x) the Per Preferred Share Cash Consideration multiplied by (y) the number of Preferred Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto;
(c) the Buyer shall deliver to each Seller a number of shares of Buyer Common Stock, which may be represented by one or more certificates or may be uncertificated, at each Seller’s election, equal to the product of :
(xi) the Per Share Buyer Stock Consideration multiplied by (y) the number of Common Shares outstanding on the Closing Date owned by such Seller as listed on Schedule 4.5(a) attached hereto (as the same may be updated prior to the Closing in accordance with Section 2.1(b))Purchase Price, less any shares of Buyer Common Stock delivered to the Escrow Agent in accordance with the last sentence of the definition of Closing Date Common Stock Cash Consideration; provided, that any payment hereunder to be made in the form of shares of Buyer Common Stock shall be made only in whole shares, and any fractional shares shall be rounded up to the nearest whole share; and
(d) the Buyer shall deliver to the Bank by wire transfer of immediately available funds to such bank account or accounts as Seller shall designate in writing to Buyer prior to the Closing;
(ii) a certificate of Manager of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the sole member of Buyer authorizing the execution, delivery, and performance of this Agreement and the Transaction Documents to which it is a party and the consummation of the Bank designated transactions contemplated hereby and thereby, and that all such resolutions are in writing full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby;
(iii) a certificate of the Manager of Buyer certifying the names and signatures of the authorized representative of Buyer authorized to sign this Agreement, the Transaction Documents to which it is a party and the other documents to be delivered hereunder and thereunder; and
(iv) all Transaction Documents to which Buyer or any of its Affiliates are parties, each duly executed by Buyer and such Affiliates.
(b) At the Closing, Seller shall deliver to Buyer:
(i) the written resignations required by Section 5.01;
(ii) a validly executed certificate from Seller in a form reasonably acceptable to Buyer conforming to the applicable requirements of Treasury Regulations Section 1.1445-2(b); and
(iii) a certificate of an officer of Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the Bank board of directors of Seller authorizing the execution, delivery, and performance of this Agreement and the Transaction Documents to which it is a party 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;
(such designation iv) a certificate of the Secretary of Seller certifying the names and signatures of the officers of Seller authorized to sign this Agreement, the Transaction Documents to which it is a party and the other documents to be made at least two delivered hereunder and thereunder;
(2v) Business Days a certificate of good standing for each Target, issued by the Delaware Secretary of State and dated not more than ten (10) days prior to the Closing Date) an amount equal to the Credit Agreement Outstanding Payoff Amount;
(e) the Buyer shall deliver the Escrow Amount, including any shares of Buyer Common Stock, if applicable, to the Escrow Agent to be held and disbursed in accordance with the terms of the Escrow Agreement;
(f) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative (such designation to be made at least two (2) Business Days prior to the Closing Date) the Sellers’ Representative Expenses Amount;
(g) the Buyer shall deliver by wire transfer of immediately available funds to the bank account designated in writing by Avista Capital Partners, LP (such designation to be made at least two (2) Business Days prior to the Closing Date) an amount equal to the Management Fee, as specified by the Company in accordance with Section 2.1(b);
(h) the Buyer shall deliver by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Seller Transaction Expenses, as specified by the Company in accordance with Section 2.1(b); and
(ivi) the Buyer shall deliver all Transaction Documents to which Seller or any of its Affiliates are parties, each duly executed by wire transfer of immediately available funds to one or more bank accounts designated in writing by the Company (Seller and such designation to be made at least two (2) Business Days prior to the Closing Date) amounts equal, in the aggregate, to the Transaction Bonuses (and the Company shall timely remit all applicable withholding obligations with respect to such Transaction Bonuses to the proper third parties in accordance with all applicable Laws)Affiliates.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Amrep Corp.)