Transactions to be Effected at the Closing. i. At the Closing, concurrently with the OpCo Closing and in exchange for the PropCo Purchase Price, Seller and PropCo Purchaser (or its designee) shall perform their respective obligations under the Real Estate Purchase Agreement, to effect the Real Estate Purchase and the PropCo Closing, in accordance with and subject to the terms and conditions set forth in the Real Estate Purchase Agreement (including the conditions to the PropCo Closing set forth in Section 9 of the Real Estate Purchase Agreement); provided, however, that if PropCo Purchaser assigns the Real Estate Purchase Agreement to either one or more Subsidiaries or a debt financing source for the purpose of funding the transactions contemplated hereby pursuant to the terms of the Real Estate Purchase Agreement, PropCo Purchaser shall guarantee all of the obligations of its designee thereunder. ii. Seller shall conduct a physical counting of the cash of Seller and its Affiliates located on the Premises as of the Reference Time (the “Cash Count”). The aggregate amounts of cash determined in accordance with the preceding sentence, absent any dispute from OpCo Purchaser or its representatives in connection with the Cash Count, shall be deemed an OpCo Acquired Asset and included in the determination of the amount of Final Closing Net Working Capital, subject to adjustments pursuant to Section 4(d). To the extent not prohibited by applicable Gaming Authorities or applicable Law, OpCo Purchaser may have its representatives present during the Cash Count and such representatives shall have the right to dispute or sign off on the due completion and outcome of the Cash Count on the Closing Date and (A) to the extent such outcome is disputed, without limitation of either OpCo Purchaser’s or Seller’s rights under Section 4(d), and (B) to the extent such outcome is signed off on, shall be final and binding for purposes of determining Final Closing Net Working Capital; provided, however, that such representatives shall not interfere with Seller’s conduct of the Cash Count.
Appears in 1 contract
Transactions to be Effected at the Closing. i. (a) At the Closing, concurrently with Buyer shall:
(i) deliver to Sellers:
(A) the OpCo Closing and Estimated Cash Consideration in exchange for the PropCo Purchase Price, Seller and PropCo Purchaser amounts specified on Annex A hereto (or its designee) shall perform in proportion to their respective obligations under the Real Estate Purchase Agreement, to effect the Real Estate Purchase and the PropCo Closing, in accordance with and subject Pro Rata Shares) by wire transfer of immediately available funds to the terms and conditions set forth in Purchase Price Bank Account for each Seller; and
(B) the Real Estate Purchase Escrow Agreement duly executed by Buyer.
(including the conditions to the PropCo Closing set forth in Section 9 ii) pay, on behalf of the Real Estate Purchase Agreement); providedCompany or Sellers, however, that if PropCo Purchaser assigns the Real Estate Purchase Agreement to either one or more Subsidiaries or a debt financing source for the purpose of funding the transactions contemplated hereby pursuant to the terms of the Real Estate Purchase Agreement, PropCo Purchaser shall guarantee all of the obligations of its designee thereunder.following amounts:
ii. Seller shall conduct a physical counting of the cash of Seller and its Affiliates located on the Premises as of the Reference Time (the “Cash Count”). The aggregate amounts of cash determined in accordance with the preceding sentence, absent any dispute from OpCo Purchaser or its representatives in connection with the Cash Count, shall be deemed an OpCo Acquired Asset and included in the determination of the amount of Final Closing Net Working Capital, subject to adjustments pursuant to Section 4(d). To the extent not prohibited by applicable Gaming Authorities or applicable Law, OpCo Purchaser may have its representatives present during the Cash Count and such representatives shall have the right to dispute or sign off on the due completion and outcome of the Cash Count on the Closing Date and (A) to the extent such outcome is disputedLenders, without limitation the amounts necessary to pay off the portion of either OpCo Purchaser’s or Seller’s rights under Section 4(d), the Estimated Closing Indebtedness owed to the Lenders by wire transfer of immediately available funds to the accounts and in the amounts specified in the Debt Payoff Letters; and
(B) to the extent Persons identified in the Invoices, the amounts necessary to pay off the portion of the Estimated Closing Transaction Expenses owed to such outcome Persons by wire transfer of immediately available funds to the accounts and in the amounts specified in the Invoices.
(iii) 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 an account 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 VII and the obligations of Sellers in Section 2.04(d) and Section 6.09;
(C) the Retention Bonus Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Retention Bonus Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held pursuant to Section 2.08;
(D) the Tax Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Tax Escrow Fund”) by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held pursuant to Section 6.07;
(E) the PPP Escrow Amount by wire transfer of immediately available funds to an account designated by the Escrow Agent, to be held pursuant to Section 2.07;
(F) the Special Indemnity Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Special 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 indemnification obligations of Sellers with respect to Item 3 and Item 4 on Annex F; and
(G) the Escrow Agreement duly executed by Buyer and, subject to the satisfaction of Section 2.03(b)(ii), the Sellers’ Representative.
(iv) deliver to the Sellers’ Representative the Sellers’ Representative Expense Fund by wire transfer of immediately available funds to an account designated by the Sellers’ Representative, to be held pursuant to Section 8.01.
(v) deliver to each Key Employee, an employment agreement in form and substance reasonably acceptable to Buyer and each Key Employee (each, an “Employment Agreement”), duly executed by Buyer.
(b) At the Closing, the Sellers’ Representative shall deliver to Buyer:
(i) written assignments of the Membership Interests held by each Seller to Buyer, in a form mutually agreed by the Sellers’ Representative and Buyer (the “Assignments”), duly executed by each Seller;
(ii) the Escrow Agreement duly executed by the Sellers’ Representative;
(iii) written resignations, in a form mutually agreed by the Sellers’ Representative and Buyer, effective as of the Closing Date, of each manager and officer of the Company (solely with respect to their officer and manager designations but not from employment by the Company) as the Buyer may have requested in writing prior to the Closing Date, duly executed by each such manager or officer;
(iv) an employment agreement in form and substance reasonably acceptable to Buyer and each Key Employee (each, an “Employment Agreement”), duly executed by each Key Employee and the Company;
(v) a certificate of the secretary, assistant secretary or manager of the Company dated as of the Closing Date and attaching (A) the Company’s Articles of Organization and all amendments thereto, certified by the State Corporation Commission of the Commonwealth of Virginia not more than seven (7) Business Days prior to the Closing Date; (B) the Operating Agreement; (C) a certificate of good standing of the Company certified by the State Corporation Commission of the Commonwealth of Virginia and each other jurisdiction in which the Company is signed off onqualified to do business issued not more than seven (7) Business Days prior to the Closing Date; (D) all resolutions of the board of managers of the Company authorizing and approving this Agreement and the Ancillary Documents and the Transactions; and (E) incumbency and signatures of the officers or manager(s) of the Company executing this Agreement or any Ancillary Document;
(vi) evidence, shall be final in form and binding for purposes of determining Final Closing Net Working Capital; provided, howeversubstance reasonably acceptable to Buyer, that such representatives shall not interfere those notices required to be given and Filings required to be made by any Seller or the Company in connection with Seller’s conduct the execution, delivery, and performance of this Agreement or the Ancillary Documents and the consummation and performance of the Cash CountTransactions that are or are required to be set forth on Section 3.04 of the Disclosure Schedules have been duly given to or made with the appropriate Persons, and copies, in form and substance reasonably acceptable to Buyer, of those Consents required to be obtained by any Seller or the Company in connection with the execution, delivery, and performance of this Agreement or the Ancillary Documents and the consummation and performance of the Transactions that are or are required to be set forth on Section 3.04 of the Disclosure Schedules, duly executed by the appropriate Persons;
(vii) payoff letters (the “Debt Payoff Letters”), in form and substance reasonably acceptable to Buyer, duly executed by the Lenders, providing for, upon the payment of all Closing Indebtedness owed by the Company to such Lender at the Closing, the termination of all Encumbrances held by such Lender with respect to the Assets of the Company (including authorization of the Company and the Company’s Representatives to file all necessary UCC-3 termination statements and other necessary documentation in connection with the termination of such Encumbrances);
(viii) invoices (the “Invoices”) from the applicable Persons, dated no more than two (2) Business Days prior to the Closing Date, with respect to all Closing Transaction Expenses due and payable to such applicable Persons as of the Closing Date; and
(ix) evidence, in form and substance reasonably acceptable to Buyer, that the Company has purchased “tail” policies (the “Tail Policies”) that (A) provide extended reporting period coverage under those insurance policies of the Company set forth on Annex D covering claims asserted within six (6) years after the Closing Date arising from action, event, development, or occurrence that occurred at or before the Closing (including consummation and performance of the Transactions) and (B) name as insureds thereunder all current and former directors, officers, and employees of the Company;
(x) evidence, in form and substance reasonably acceptable to Buyer, that the Company has terminated those Contracts, Benefit Plans, and Insurance Policies set forth on Annex E, if any, in each case, in accordance with the terms of such Contract, Benefit Plans, and Insurance Policies;
(xi) a certificate executed by each Seller, in form and substance reasonably acceptable to Buyer, duly completed pursuant to Treasury Regulation Section 1.1445-2(b) and Code Section 1446(f)(2) certifying that such Seller is not a foreign person;
(xii) an electronic copy (e.g. CD-ROM or USB drive) of the Data Room as it exists immediately prior to the Closing; and
(xiii) the PPP Escrow Agreement duly executed by the Company and the PPP Lender.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Computer Programs & Systems Inc)
Transactions to be Effected at the Closing. i. At the Closing:
(a) Seller shall execute, concurrently with as applicable, and cause the OpCo Closing DXP Affiliates, as applicable, to execute, and deliver to Purchaser the following: a Software License Agreement (the “ Software License Agreement”), in exchange for a form to be agreed on by the PropCo Purchase Price, Seller and PropCo Purchaser Purchaser, acting reasonably;
(or its designeei) shall perform their respective obligations under the Real Estate Purchase Agreement, to effect the Real Estate Purchase and the PropCo Closinga ▇▇▇▇ of sale, in accordance with a form to be agreed on by the Seller and subject to the terms Purchaser, acting reasonably;
(ii) an assignment and conditions set forth assumption agreement in the Real Estate Purchase Agreement (including the conditions to the PropCo Closing set forth in Section 9 respect of the Real Estate Purchase Agreement); providedAssigned Contracts, however, that if PropCo Purchaser assigns in a form to be agreed on by the Real Estate Purchase Agreement to either one or more Subsidiaries or a debt financing source for the purpose of funding the transactions contemplated hereby pursuant to the terms of the Real Estate Purchase Agreement, PropCo Purchaser shall guarantee all of the obligations of its designee thereunder.
ii. Seller shall conduct a physical counting of the cash of Seller and its Affiliates located on the Premises as of the Reference Time Purchaser, acting reasonably (the “Cash CountAssignment and Assumption Agreement”). The aggregate amounts of cash determined in accordance with the preceding sentence, absent any dispute from OpCo Purchaser or its representatives in connection with the Cash Count, shall be deemed ;
(iii) an OpCo Acquired Asset and included in the determination assignment of the amount of Final Closing Net Working CapitalBusiness Intellectual Property, subject to adjustments pursuant to Section 4(d). To the extent not prohibited by applicable Gaming Authorities or applicable Law, OpCo Purchaser may have its representatives present during the Cash Count and such representatives shall have the right to dispute or sign off on the due completion and outcome including an assignment of the Cash Count on patents and an assignment of the Closing Date and (A) patent application included as part of the Business Intellectual Property forming part of the Business Intellectual Property, to the extent such outcome is disputeda form of assignment of such patents and the patent application may be required under the laws of any country in which the patents are granted and the patent application may have been made, all in forms to be agreed on by the Seller and Purchaser, acting reasonably;
(iv) a Non-Competition and Non-Solicitation Agreement, in a form to be agreed on Seller and Purchaser, acting reasonably, executed by Seller (the “Non-Competition Agreement”) pursuant to which Seller will agree that it will not (and will not permit any Affiliates of Seller to), for a period of five years after the Closing Date, compete with the Business anywhere in the world or solicit any customers, employees or consultants of Purchaser or any Affiliates of Purchaser, subject to an agreed exclusion permitting Seller to solicit customers of Purchaser for those products, solutions and services of Seller that are not in competition with the Business. ;
(v) a Transition Services Agreement, in a form to be agreed on by the Seller and Purchaser, acting reasonably ( the “Transition Services Agreement”), executed by Seller; and
(vi) an Acknowledgment and Release in a form to be agreed on by the Seller and Purchaser, acting reasonably, signed by each DXP Affiliate, and, if reasonably required by Purchaser, any other Affiliate of Seller which may be using, or ever has used any of the Business Intellectual Property, acknowledging and confirming that such persons do not have any right, title or interest in and to the Business Intellectual Property, except pursuant to licenses that may be granted by Purchaser and releasing any claims such persons may have in respect of the Business Intellectual Property;
(vii) the Escrow Agreement;
(viii) a certificate signed by an officer of Seller with respect to the representations, warranties and covenants of Seller pursuant to Section 6.02(a) and Section 6.02(b); and {00906776.2 } 00900835.10 5
(ix) such other appropriately executed deeds (in recordable form), bills of sale, assignments, other instruments of transfer, assurances, certificates, consents, agreements, elections, documents or instruments relating to the Acquired Assets, as may be contemplated by this Agreement or as reasonably required by Purchaser to complete the transactions contemplated in this Agreement or to demonstrate satisfaction of the conditions and compliance with the covenants set forth in this Agreement,;
(b) Purchaser, or an Affiliate of Purchaser, as applicable, shall execute, as applicable, and deliver to Seller:
(i) the Software License Agreement;
(ii) the Assignment and Assumption Agreement;
(iii) the Transition Services Agreement;
(iv) the DXP Affiliate Transfer Agreements, if applicable;
(v) the Escrow Agreement;
(vi) a certificate signed by an officer of Purchaser with respect to the representations, warranties and covenants of Purchaser pursuant to Section 6.03(a)and Section 6.03(b); and
(vii) such other appropriately executed deeds, assurances, certificates, consents, agreements, elections, documents or instruments relating to the Acquired Assets, or as may be contemplated by this Agreement or as reasonably required by Seller to complete the transactions contemplated in this Agreement or to demonstrate satisfaction of the conditions and compliance with the covenants set forth in this Agreement all in form and substance reasonably satisfactory to Seller and its counsel.
(c) At the Closing Seller will deliver, or cause to be delivered, to Purchaser, all of the Records which are solely Related to the Business. Seller may, at its own cost, retain a copy of such Records, or any part thereof.
(d) Seller will, for at least a period of six years after the Closing Date, have access to, and the right to copy, at its expense, the Records Related to the Business prior to the Closing, to the extent such access or copies are required by Seller for bona fide business purposes:
(i) to perform its obligations under this Agreement;
(ii) with respect to any claim by Purchaser against Seller, or any claim by Seller against Purchaser, whether arising under this Agreement or otherwise; or
(iii) required under Applicable Laws.
(e) At Closing, Seller will deliver, or cause to be delivered, to Purchaser, a copy of the portions of Records that are not solely related to the Business, that relate to the Business.
(f) The party in possession (which for such purpose shall include files, books and records which may be held by any other Person on behalf of a party) of any such files, books or records existing at the Closing Date Related to the Business prior to the Closing shall use its reasonable efforts to not destroy such files, books or records for a period of six (6) years after the Closing Date without limitation giving the other party at least 30 days’ prior written notice and permitting such party to examine and copy such files, books and records prior to their destruction. Notwithstanding the foregoing, no party will be responsible or liable to another party for or as a result of either OpCo Purchaser’s any accidental loss or Seller’s rights under Section 4(d)destruction of or damage to any such books or records. Access to such files, books and records shall be during normal business hours and upon not less than two days’ prior written request, shall be subject to such reasonable limitations as the party or other Person having custody or control thereof may impose to preserve the confidentiality of information contained therein and shall not extend to material subject to a claim of privilege unless expressly waived by the party entitled to claim such privilege.
(g) To the extent Seller retains any Records, or copies of Records, or there are any other files, books and records which are in the possession of Seller or any of its Affiliates or agents Related to the Business (including (i) a copy of all sales and purchase records, list of customers and vendors, cost and pricing information, business reports, plans and projections, correspondence with Governmental Entities or regulatory agencies Related to the Business and, in each case, all supporting files and documents, whether in written or other form, of any kind, whether held by Seller or any Affiliate thereof or others on their behalf, including computer systems and software documentation, disks, tapes and other computer storage media; and (ii) litigation files, they shall make all such files, books and records as may reasonably be requested by Purchaser available for inspection by Purchaser for the greater of (A) a period of six (6) years after the Closing Date, and (B) to the extent period of such outcome is signed off onretention.
(h) Notwithstanding the foregoing, in the case of any such files, books and records which are not held by Purchaser or Seller, but instead by others on their behalf, it shall be final sufficient if Purchaser or Seller make, and binding for purposes of determining Final Closing Net Working Capital; providedcontinue to make, howeverarrangements to authorize and permit Seller, that or Purchaser, as applicable, or their respective agents or other representatives, to have access to such representatives shall not interfere with Seller’s conduct of the Cash Countfiles, books and records as provided in this Section 2.02 as Seller or Purchaser, as applicable, reasonably requires.
Appears in 1 contract
Sources: Asset Purchase Agreement (Synchronoss Technologies Inc)
Transactions to be Effected at the Closing. i. (a) At the Closing, concurrently the Buyer shall deposit with the OpCo Escrow Agent (i) an amount equal to $2,000,000 (the “Adjustment Escrow Amount”) into a designated non-interest bearing account the (“Adjustment Escrow Account”), by wire transfer of immediately available funds in U.S. dollars, and (ii) the Specified Matter Escrow Shares into a designated non-interest bearing account (the “Specified Matter Escrow Account”); provided, that (A) the Specified Matter AP Hostess LP Escrow Shares shall be deemed delivered to the Escrow Agent on behalf of AP Hostess LP, (B) the Specified Matter Hostess CDM Co-Invest Escrow Shares shall be deemed delivered to the Escrow Agent on behalf of Hostess CDM Co-Invest and (C) the Specified Matter CDM Hostess Escrow Shares shall be deemed delivered to the Escrow Agent on behalf of CDM Hostess. Pursuant to an escrow agreement to be entered into on the Closing Date by and between the Buyer, the Sellers’ Representative and the Escrow Agent in form and substance reasonably acceptable to the Parties (the “Escrow Agreement”), the Buyer and the Sellers’ Representative will appoint the Escrow Agent to (I) hold the Adjustment Escrow Amount until the final determination of the Final Closing Consideration Amount and disburse the Adjustment Escrow Amount as provided herein and in exchange the Escrow Agreement and (II) hold and release the Specified Matter Escrow Shares, in each case as provided herein and in the Escrow Agreement. The Specified Matter Escrow Shares shall be available to the Sellers to satisfy any amounts due from the Sellers for any indemnification claims in respect of the PropCo Purchase Price, Seller and PropCo Purchaser Specified Matter pursuant to Section 9.2(a)(viii).
(or its designeeb) shall perform their respective obligations under At the Real Estate Purchase Agreement, to effect the Real Estate Purchase and the PropCo Closing, the Buyer or Merger Sub shall, as applicable:
(i) pay or cause to be paid (by wire transfer of immediately available funds in accordance with U.S. dollars to such account or accounts specified by the Sellers’ Representative) to AP Hostess LP, an amount equal to (A)(1) AP Hostess LP’s Pro-Rata Share, multiplied by (2) the Closing Cash Payment Amount, minus (B) 2.5% of the Management LLC Class B-1 and subject to B-2 Cash Payment Amount, minus (C)(1) AP Hostess LP’s Pro-Rata Share, multiplied by (2) the terms and conditions Adjustment Escrow Amount, minus (D) the AP Hostess LP Tax Adjustment Amount, if any, as of the Closing, as set forth in the Real Estate Purchase Agreement Allocation Schedule;
(including ii) pay or cause to be paid (by wire transfer of immediately available funds in U.S. dollars to such account or accounts specified by the conditions Sellers’ Representative) to Hostess CDM Co-Invest, an amount equal to (A)(1) Hostess CDM Co-Invest’s Pro-Rata Share, multiplied by (2) the PropCo Closing Cash Payment Amount, minus (B) 2.5% of the Management LLC Class B-1 and B-2 Cash Payment Amount, minus (C)(1) Hostess CDM Co-Invest’s Pro-Rata Share, multiplied by (2) the Adjustment Escrow Amount, minus (D) the CDM Rollover Amount, as set forth in Section 9 the Allocation Schedule;
(iii) pay or cause to be paid (by wire transfer of immediately available funds in U.S. dollars to such account or accounts specified by the Sellers’ Representative) to CDM Hostess, an amount equal to (A)(1) CDM Hostess’ Pro-Rata Share, multiplied by (2) the Closing Cash Payment Amount, plus (B) 5.0% of the Real Estate Purchase AgreementManagement LLC Class B-1 and B-2 Cash Payment Amount, minus (C)(1) CDM Hostess’ Pro-Rata Share, multiplied by (2) the Adjustment Escrow Amount, as set forth in the Allocation Schedule;
(iv) deliver to AP Hostess LP certificates or, at AP Hostess LP’s written request, evidence of shares in book-entry form, representing a number of shares of Buyer Class A Common Stock equal to (A); provided
(1) AP Hostess LP’s Pro-Rata Share multiplied by (2) the Closing Number of Securities, howeverplus (B) the number of AP Hostess LP Tax Adjustment Shares, that if PropCo Purchaser assigns the Real Estate Purchase Agreement to either one or more Subsidiaries or a debt financing source for the purpose of funding the transactions contemplated hereby pursuant to the terms of the Real Estate Purchase Agreementany, PropCo Purchaser shall guarantee all of the obligations of its designee thereunder.
ii. Seller shall conduct a physical counting of the cash of Seller and its Affiliates located on the Premises as of the Reference Time Closing, minus (C) the “Cash Count”). The aggregate amounts number of cash determined Specified Matter AP Hostess LP Escrow Shares, as set forth in the Allocation Schedule;
(v) deliver to Hostess CDM Co-Invest certificates or, at Hostess CDM Co-Invest’s written request, evidence of shares in book-entry form, representing a number of shares of Buyer Class B Common Stock equal to (A)(1) Hostess CDM Co-Invest’s Pro-Rata Share multiplied by (2) the Closing Number of Securities, plus (B) the number of CDM Rollover Shares, minus (C) the number of Specified Matter Hostess CDM Co-Invest Escrow Shares, as set forth in the Allocation Schedule;
(vi) deliver to CDM Hostess certificates or, at CDM Hostess’ written request, evidence of shares in book-entry form, representing a number of shares of Buyer Class B Common Stock equal to (A)(1) CDM Hostess’ Pro-Rata Share multiplied by (2) the Closing Number of Securities, minus (B) the number of Specified Matter CDM Hostess Co-Invest Escrow Shares, as set forth in the Allocation Schedule;
(vii) pay or cause to be paid the Estimated Hostess Transaction Costs to the applicable payees as set forth on the Estimated Adjustment Statement;
(viii) pay or cause to be paid to Hostess Brands the Estimated LTIP Payment Amount, which the Buyer will cause Hostess Brands to distribute to the holders of awards under the LTIP as promptly as possible following the Closing in accordance with the preceding sentenceamounts set forth on the Estimated Adjustment Statement;
(ix) contribute to Hostess Holdings the Deleveraging Amount;
(x) deliver to the Sellers a copy of the Hostess Holdings A&R LPA, absent any dispute from OpCo Purchaser duly executed by the Buyer;
(xi) deliver to the Sellers a certified copy of the Buyer A&R Charter and the Buyer A&R Bylaws;
(xii) deliver to AP Hostess LP a certified copy of the certificate of incorporation of Merger Sub;
(xiii) deliver to AP Hostess LP a copy of the AP Hostess Holdings Merger Agreement, duly executed by the Buyer and by Merger Sub;
(xiv) deliver to Hostess CDM Co-Invest a copy of the Contribution and Purchase Agreement, duly executed by the Buyer;
(xv) deliver to the Sellers a copy of the Exchange Agreement, duly executed by the Buyer;
(xvi) deliver to the Sellers a copy of the Tax Receivable Agreement, duly executed by the Buyer;
(xvii) deliver to the Sellers a copy of the Registration Rights Agreement, duly executed by the Buyer;
(xviii) deliver to the Sellers a copy of the Escrow Agreement, duly executed by the Buyer and the Escrow Agent; and
(xix) deliver to the Sellers all other documents, instruments or its representatives in connection with certificates required to be delivered by the Buyer at or prior to the Closing pursuant to Section 7.2.
(c) At the Closing, AP Hostess LP will deliver to the Buyer:
(i) a copy of the AP Hostess Holdings Merger Agreement, duly executed by AP Hostess Holdings;
(ii) a copy of the Tax Receivable Agreement, duly executed by AP Hostess LP;
(iii) a copy of the Registration Rights Agreement, duly executed by AP Hostess LP; and
(iv) all documents, instruments or certificates required to be delivered by AP Hostess LP or AP Hostess Holdings at or prior to the Closing pursuant to Section 7.1.
(d) At the Closing, Hostess CDM Co-Invest and CDM Hostess will deliver to the Buyer:
(i) a copy of the Hostess Holdings A&R LPA, duly executed by Hostess CDM Co-Invest and CDM Hostess;
(ii) a copy of the Contribution and Purchase Agreement, duly executed by Hostess CDM Co-Invest and CDM Hostess; and
(iii) a copy of the Exchange Agreement, duly executed by Hostess CDM Co-Invest and CDM Hostess;
(iv) a copy of the Tax Receivable Agreement, duly executed by CDM Hostess and Hostess CDM Co-Invest;
(v) a copy of the Registration Rights Agreement, duly executed by CDM Hostess and Hostess CDM Co-Invest; and
(vi) all documents, instruments or certificates required to be delivered by Hostess CDM Co-Invest or CDM Hostess at or prior to the Closing pursuant to Section 7.1.
(e) At the Closing, AP Hostess LP and Hostess CDM Co-Invest will deliver to the Buyer:
(i) a copy of the Management LLC Merger Agreement, duly executed by Hostess Holdings and Management LLC;
(ii) a copy of the Exchange Agreement, duly executed by Hostess Holdings; and
(iii) a copy of the Hostess Holdings A&R LPA, duly executed by Hostess Holdings and Hostess GP.
(f) At the Closing, the Sellers’ Representative will deliver to the Buyer:
(i) a true and complete schedule reflecting (A) the Closing Cash CountPayment Amount, shall be deemed an OpCo Acquired Asset and included in the determination Closing Number of Securities, the Deleveraging Amount, the AP Hostess LP Tax Adjustment Amount, (B) the amount of Final Closing Net Working Capital, subject cash to adjustments be paid to each Cash Recipient pursuant to Section 4(d2.4(b). To , (C) the extent not prohibited number of shares of Buyer Class A Common Stock to be issued to AP Hostess LP pursuant to Section 2.4(b), (D) the number of shares of Buyer Class B Common Stock to be issued to CDM Hostess and Hostess CDM Co-Invest pursuant to clause Section 2.4(b), (E) the number of Specified Matter AP Hostess LP Escrow Shares, Specified Matter CDM Hostess Escrow Shares and Specified Matter Hostess CDM Co-Invest Escrow Shares, (F) the number of Class B LP Units to be purchased by applicable Gaming Authorities or applicable Law, OpCo Purchaser may have its representatives present during the Cash Count Buyer from Hostess CDM Co-Invest and such representatives shall have the right to dispute or sign off on the due completion and outcome of the Cash Count on the Closing Date and (A) CDM Hostess pursuant to the extent such outcome is disputed, without limitation of either OpCo Purchaser’s or Seller’s rights under Section 4(d)Contribution and Sale Agreement, and (BG) the Allocation (the “Allocation Schedule”); and
(ii) a copy of the Escrow Agreement, duly executed by the Sellers’ Representative.
(g) The number of shares of Buyer Class A Common Stock and Buyer Class B Common Stock which each Seller is entitled to receive under this Section 2.4 shall be rounded up to the extent such outcome is signed off on, shall be final and binding for purposes nearest whole number of determining Final Closing Net Working Capital; provided, however, that such representatives shall not interfere with Seller’s conduct of the Cash Countshares.
Appears in 1 contract
Sources: Master Transaction Agreement (Gores Holdings, Inc.)
Transactions to be Effected at the Closing. i. At the Closing, concurrently with upon the OpCo Closing and satisfaction of the conditions precedent described in exchange for Article III hereof, the PropCo Purchase Price, Seller and PropCo Purchaser following transactions shall be effected:
(or its designeea) shall perform their respective obligations The Commitment under each of the Real Estate Purchase Agreement, to effect the Real Estate Purchase TD Bank Note and the PropCo ClosingThunder Bay Note shall be equal to the applicable amount specified on Schedule I hereto.
(b) On the 20202022 Amendment Closing Date, after giving effect to the transactions contemplated in accordance with this Article IIA, each of the Series 2017-VFN Notes shall have the respective Ownership Group Commitments, Ownership Group Percentage Interests and Tranche Invested Amounts specified on Schedule I hereto.
(c) On the terms and subject to the terms and conditions set forth in this Agreement, the Real Estate Purchase Agreement Series 2017-VFN Supplement and the other Transaction Documents, upon the request of the Transferor following the 2020 Amendment Closing Date (including i) the conditions TD Bank Managing Agent will surrender to the PropCo Closing set forth Indenture Trustee for cancellation the TD Bank Note existing prior to the date hereof in Section 9 exchange for a new TD Bank Note to be issued in an amount equal to the Ownership Group Commitment for its related Ownership Group equal to the applicable amount specified on Schedule I hereto and (ii) the Thunder Bay Managing Agent will surrender to the Indenture Trustee for cancellation the Thunder Bay Note existing prior to the date hereof in exchange for a new Thunder Bay Note to be issued in an amount equal to the Ownership Group Commitment for its related Ownership Group equal to the applicable amount specified on Schedule I hereto.
(d) Upon delivery to the Indenture Trustee for cancellation of the Real Estate Purchase Agreement); providedTD Bank Note and the Thunder Bay Note referenced in clauses (c)(i) and c(ii) above, howeverrespectively, that if PropCo Purchaser assigns the Real Estate Purchase Agreement Transferor shall cause to either one or more Subsidiaries or a debt financing source for be issued and delivered (A) the purpose of funding the transactions contemplated hereby pursuant new TD Bank Note to the terms of TD Bank Managing Agent and (B) the Real Estate Purchase Agreementnew Thunder Bay Note to the Thunder Bay Managing Agent, PropCo Purchaser shall guarantee all of the obligations of its designee thereunder.
ii. Seller shall conduct a physical counting of the cash of Seller and its Affiliates located on the Premises as of the Reference Time (the “Cash Count”). The aggregate amounts of cash determined each authenticated in accordance with the preceding sentence, absent any dispute from OpCo Purchaser or its representatives in connection Indenture and with the Cash Count, shall be deemed an OpCo Acquired Asset and included in the determination of the amount of Final Closing Net Working Capital, subject to adjustments pursuant to Section 4(d). To the extent not prohibited by applicable Gaming Authorities or applicable Law, OpCo Purchaser may have its representatives present during the Cash Count and such representatives shall have the right to dispute or sign off on the due completion and outcome of the Cash Count on the Closing Date and (A) Ownership Group Commitment equal to the extent such outcome is disputed, without limitation of either OpCo Purchaser’s or Seller’s rights under Section 4(d), and (B) to the extent such outcome is signed off on, shall be final and binding for purposes of determining Final Closing Net Working Capital; provided, however, that such representatives shall not interfere with Seller’s conduct of the Cash Countapplicable amount specified on Schedule I hereto.
Appears in 1 contract
Sources: Omnibus Amendment to Indenture and Note Purchase Agreement (United States Cellular Corp)
Transactions to be Effected at the Closing. i. (a) At the Closing, concurrently with but immediately prior to the OpCo Closing consummation of the Membership Interests Purchase and in exchange for the PropCo Real Estate Purchase Price, Seller the Company and the PropCo Purchaser Buyer (or its designee) shall perform their respective obligations under the Real Estate Purchase Agreement, to and thereby effect the Real Estate Purchase and the PropCo ClosingPurchase, in accordance with and subject to the terms and conditions set forth in the Real Estate Purchase Agreement (including the conditions to the PropCo Closing closing set forth in Section 9 of the Real Estate Purchase AgreementArticle V thereof); provided, however, that if the PropCo Purchaser Buyer assigns the Real Estate Purchase Agreement to either one or more Subsidiaries or a debt financing source for the purpose of funding the transactions contemplated hereby designee pursuant to the terms of the Real Estate Purchase Agreement, the PropCo Purchaser Buyer shall guarantee all of the obligations of its designee thereunder. The Membership Interests Purchase, the Real Estate Purchase and the other transactions contemplated by this Agreement and the Real Estate Purchase Agreement are referred to herein as the “Transactions”.
ii. Seller (b) The Company shall (i) conduct a physical counting of the cash of Seller Cage Cash and its Affiliates Kiosk Cash located on the Premises Company Real Property and (ii) obtain an account balance statement from the Company’s banks showing the amount of Cash in the Company’s bank accounts, and the amount of the Cash Deduction, in each case as of the Reference Time (the “Cash Count”). The aggregate amounts amount of cash Cash and the Cash Deduction determined in accordance with the preceding sentenceclauses (i) and (ii), absent any dispute from the OpCo Purchaser or its Buyer’s representatives in connection with the Cash Count, shall be deemed an OpCo Acquired Asset and included in the determination of the amount of Final Closing Net Working CapitalDate Company Cash, subject to adjustments any adjustment pursuant to Section 4(d)2.06. To the extent not prohibited permitted by applicable Gaming Authorities or applicable LawAuthorities, the OpCo Purchaser Buyer may have its representatives present during the Cash Count and such representatives shall have the right to dispute or sign off on the due completion and outcome of the Cash Count on the Closing Date and (A) to the extent such outcome is disputed, without limitation of either the OpCo PurchaserBuyer’s or the Seller’s rights under Section 4(d), and (B) to the extent such outcome is signed off on, shall be final and binding for purposes of determining Final Closing Net Working Capital2.06; provided, however, that such representatives shall not interfere with Sellerthe Company’s conduct of the Cash Count.
(c) At the Closing, each of the Buyers shall:
(i) deliver or cause to be delivered on behalf of the Company the amount payable to each counterparty or holder (or agent on behalf of such counterparty or holder) of Indebtedness identified on Schedule 2.04(c)(i) to the extent such Indebtedness remains outstanding following the application of the proceeds of the Real Estate Purchase Price (the “Payoff Indebtedness”) in order to fully discharge, repay or prepay such Payoff Indebtedness and terminate all applicable obligations and liabilities of the Company and any of its Affiliates related thereto (other than contingent indemnification liabilities), as specified in the Debt Payoff Letters and in accordance with this Agreement;
(ii) deliver or cause to be delivered on behalf of the Company the amount payable to each Person who is owed a portion of the Transaction Expenses (other than Transaction Expenses that are to be borne by the Buyers, as provided in this Agreement), as specified by the Seller in writing to the Buyers at least three (3) Business Days prior to the Closing;
(iii) deliver or cause to be delivered an amount equal to 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 to satisfy any adjustments to the Membership Interests Purchase Price in favor of the OpCo Buyer pursuant to Section 2.06;
(iv) deliver to the Seller the Closing Cash Consideration by wire transfer of immediately available funds to a bank account or accounts and in such proportions as specified by the Seller in writing to the Buyers at least three (3) Business Days prior to the Closing; and
(v) deliver to the Seller all other agreements, documents, instruments or certificates required to be delivered by the Buyers at or prior to the Closing pursuant to Section 7.03 of this Agreement.
(d) At the Closing, the OpCo Buyer shall additionally:
(i) deliver to the Seller and the Company a joinder to the Company Operating Agreement, duly executed by the OpCo Buyer and a counterpart signature page to the Assignment Agreement;
(ii) deliver to the Seller the Escrow Agreement, duly executed by the OpCo Buyer; and
(iii) deliver to the Seller amendments to the St. Mary’s Sublease and the Gap Building Lease, substantially in the form attached to the Real Estate Purchase Agreement as Exhibits H-1 and H-2, duly executed and acknowledged by Greektown.
(e) At the Closing, the Seller shall:
(i) deliver to the Buyers a certificate in compliance with Treasury Regulations Section 1.1445-2, certifying that the Transactions are exempt from withholding under Section 1445 of the Code, provided, that the Buyers’ sole recourse in the event that the Seller fails to deliver such certificate shall be to make an appropriate withholding under Section 1445 of the Code;
(ii) deliver to the OpCo Buyer an assignment agreement, in form and substance reasonably acceptable to the OpCo Buyer (the “Assignment Agreement”), executed by the Seller, pursuant to which (x) the Seller shall transfer and assign to the OpCo Buyer all of the Membership Interests and (y) concurrently with the Closing and the execution of a joinder to the Company Operating Agreement executed by the OpCo Buyer, the board of managers of the Company shall admit the OpCo Buyer as the sole member of the Company and the Seller shall cease to be a member of the Company;
(iii) deliver to the OpCo Buyer the Escrow Agreement, duly executed by the Seller;
(iv) deliver to the PropCo Buyer the fixed asset ledger of the Company and each Company Subsidiary as of the last day of the most recent calendar month prior to the Closing prepared in accordance with GAAP in all material respects;
(v) deliver to the PropCo Buyer all agreements, documents, instruments or certificates required to be delivered by the Seller at or prior to the Closing pursuant to the Section 3.03 of the Real Estate Purchase Agreement;
(vi) deliver to the PropCo Buyer a certificate of Seller’s chief financial officer (or other executive vested with similar duties) in the form of Exhibit D; and
(vii) deliver to the Buyers all other agreements, documents, instruments or certificates required to be delivered by the Seller at or prior to the Closing pursuant to Section 7.02 of this Agreement.
Appears in 1 contract
Transactions to be Effected at the Closing. i. At the Closing, concurrently with the OpCo Parties shall unconditionally perform the following transactions, which shall become effective upon Closing and unless otherwise indicated in exchange for this Section 2.02:
(a) The Existing Shareholder, the PropCo Purchase Price, Seller and PropCo Purchaser (or its designee) shall perform their respective obligations under the Real Estate Purchase Agreement, to effect the Real Estate Purchase Company and the PropCo Closing, Investor shall enter into a shareholders agreement substantially in accordance with and subject the form of Schedule 2.02(b) (the “Shareholders Agreement”);
(b) The Existing Shareholder shall appoint or elect or cause to be appointed to the terms board of directors of the Company (the “Board”) (i) up to three (3) individuals named by the Existing Shareholder and conditions (ii) if and to the extent requested by Investor in writing not later than the date hereof, one (1) individual identified by Investor to the Existing Shareholder in writing, with such appointment being effective as of the Closing; and
(c) Subject to Section 2.02(d), within ten (10) Business Days after the Closing (the “Interim Period”), the Company and the Investor shall execute and deliver, or cause to be executed and delivered, a subscription document substantially in the form set forth in Schedule 2.02(e) (the “Subscription Document”), and the Investor shall become unconditionally obligated to pay the Subscription Price and the Company shall become unconditionally obligated to deliver the Subscription Shares simultaneously therewith and to register the Subscription Shares in its shareholders registry.
(d) During the Interim Period, the Warrantors undertake (i) to cause the Company to be operated in the usual and ordinary course, (ii) to not issue any dividends without the Investor’s consent, (iii) to not decide any matter to which Section 4.02(a) of the Shareholders Agreement (Voting Power) applies without the Investor’s consent and (ii) notify the Investor if the Warrantors Disclosure Schedule was materially inaccurate promptly after becoming aware of such inaccuracy. In the event that the Company is not operated in the usual and ordinary course of business, or a disclosure set forth in the Real Estate Purchase Agreement (including the conditions to the PropCo Closing set forth in Section 9 of the Real Estate Purchase Agreement); providedWarrantors Disclosure Schedule was materially inaccurate when made, however, that if PropCo Purchaser assigns the Real Estate Purchase Agreement to either one or more Subsidiaries or a debt financing source for the purpose of funding the transactions contemplated hereby pursuant to the terms of the Real Estate Purchase Agreement, PropCo Purchaser shall guarantee all of the obligations of its designee thereunder.
ii. Seller shall conduct a physical counting of the cash of Seller and its Affiliates located on the Premises as of the Reference Time (the “Cash Count”). The aggregate amounts of cash determined in accordance with the preceding sentence, absent any dispute from OpCo Purchaser or its representatives in connection with the Cash Count, shall be deemed an OpCo Acquired Asset and included in the determination of the amount of Final Closing Net Working Capital, subject to adjustments pursuant to Section 4(d). To the extent not prohibited by applicable Gaming Authorities or applicable Law, OpCo Purchaser may have its representatives present during the Cash Count and such representatives LGI shall have the right to dispute or sign off notify the Warrantors of its intent to renegotiate the terms of this Agreement to address such issues. Upon such notice, the Parties shall discuss and negotiate the matter in good faith and, endeavor as soon as reasonably possible but in no event longer than thirty (30) days, to mutually agree on the due completion and outcome of the Cash Count on the Closing Date and (A) to the extent such outcome is disputeda settlement thereof, without limitation of either OpCo Purchaser’s or Seller’s rights under failing which any Party may terminate this Agreement as set forth in Section 4(d), and (B) to the extent such outcome is signed off on, shall be final and binding for purposes of determining Final Closing Net Working Capital; provided, however, that such representatives shall not interfere with Seller’s conduct of the Cash Count8.05.
Appears in 1 contract
Sources: Subscription Agreement (GeoPark LTD)
Transactions to be Effected at the Closing. i. (a) At the Closing, concurrently with but immediately prior to the OpCo Closing consummation of the Membership Interests Purchase and in exchange for the PropCo Real Estate Purchase Price, Seller the Company and the PropCo Purchaser Buyer (or its designee) shall perform their respective obligations under the Real Estate Purchase Agreement, to and thereby effect the Real Estate Purchase and the PropCo ClosingPurchase, in accordance with and subject to the terms and conditions set forth in the Real Estate Purchase Agreement (including the conditions to the PropCo Closing closing set forth in Section 9 of the Real Estate Purchase AgreementArticle V thereof); provided, however, that if the PropCo Purchaser Buyer assigns the Real Estate Purchase Agreement to either one or more Subsidiaries or a debt financing source for the purpose of funding the transactions contemplated hereby designee pursuant to the terms of the Real Estate Purchase Agreement, the PropCo Purchaser Buyer shall guarantee all of the obligations of its designee thereunder. The Membership Interests Purchase, the Real Estate Purchase and the other transactions contemplated by this Agreement and the Real Estate Purchase Agreement are referred to herein as the “Transactions”.
ii. Seller (b) The Company shall (i) conduct a physical counting of the cash of Seller Cage Cash and its Affiliates Kiosk Cash located on the Premises Company Real Property and (ii) obtain an account balance statement from the Company’s banks showing the amount of Cash in the Company’s bank accounts, and the amount of the Cash Deduction, in each case as of the Reference Time (the “Cash Count”). The aggregate amounts amount of cash Cash and the Cash Deduction determined in accordance with the preceding sentenceclauses (i) and (ii), absent any dispute from the OpCo Purchaser or its Buyer’s representatives in connection with the Cash Count, shall be deemed an OpCo Acquired Asset and included in the determination of the amount of Final Closing Net Working CapitalDate Company Cash, subject to adjustments any adjustment pursuant to Section 4(d)2.06. To the extent not prohibited permitted by applicable Gaming Authorities or applicable LawAuthorities, the OpCo Purchaser Buyer may have its representatives present during the Cash Count and such representatives shall have the right to dispute or sign off on the due completion and outcome of the Cash Count on the Closing Date and (A) to the extent such outcome is disputed, without limitation of either the OpCo PurchaserBuyer’s or the Seller’s rights under Section 4(d), and (B) to the extent such outcome is signed off on, shall be final and binding for purposes of determining Final Closing Net Working Capital2.06; provided, however, that such representatives shall not interfere with Sellerthe Company’s conduct of the Cash Count.
(c) At the Closing, each of the Buyers shall:
(i) deliver or cause to be delivered on behalf of the Company the amount payable to each counterparty or holder (or agent on behalf of such counterparty or holder) of Indebtedness identified on Schedule 2.04(c)(i) to the extent such Indebtedness remains outstanding following the application of the proceeds of the Real Estate Purchase Price (the “Payoff Indebtedness”) in order to fully discharge, repay or prepay such Payoff Indebtedness and terminate all applicable obligations and liabilities of the Company and any of its Affiliates related thereto (other than contingent indemnification liabilities), as specified in the Debt Payoff Letters and in accordance with this Agreement;
(ii) deliver or cause to be delivered on behalf of the Company the amount payable to each Person who is owed a portion of the Transaction Expenses (other than Transaction Expenses that are to be borne by the Buyers, as provided in this Agreement), as specified by the Seller in writing to the Buyers at least three (3) Business Days prior to the Closing;
(iii) deliver or cause to be delivered an amount equal to 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 to satisfy any adjustments to the Membership Interests Purchase Price in favor of the OpCo Buyer pursuant to Section 2.06;
(iv) deliver to the Seller the Closing Cash Consideration by wire transfer of immediately available funds to a bank account or accounts and in such proportions as specified by the Seller in writing to the Buyers at least three (3) Business Days prior to the Closing; and
(v) deliver to the Seller all other agreements, documents, instruments or certificates required to be delivered by the Buyers at or prior to the Closing pursuant to Section 7.03 of this Agreement.
(d) At the Closing, the OpCo Buyer shall additionally:
(i) deliver to the Seller and the Company a joinder to the Company Operating Agreement, duly executed by the OpCo Buyer and a counterpart signature page to the Assignment Agreement;
(ii) deliver to the Seller the Escrow Agreement, duly executed by the OpCo Buyer; and
(iii) deliver to the Seller amendments to the St. Mary’s Sublease and the Gap Building Lease, substantially in the form attached to the Real Estate Purchase Agreement as Exhibits H-1 and H-2, duly executed and acknowledged by Greektown.
(e) At the Closing, the Seller shall:
(i) deliver to the Buyers a certificate in compliance with Treasury Regulations Section 1.1445-2, certifying that the Transactions are exempt from withholding under Section 1445 of the Code, provided, that the Buyers’ sole recourse in the event that the Seller fails to deliver such certificate shall be to make an appropriate withholding under Section 1445 of the Code;
(ii) deliver to the OpCo Buyer an assignment agreement, in form and substance reasonably acceptable to the OpCo Buyer (the “Assignment Agreement”), executed by the Seller, pursuant to which (x) the Seller shall transfer and assign to the OpCo Buyer all of the Membership Interests and (y) concurrently with the Closing and the execution of a joinder to the Company Operating Agreement executed by the OpCo Buyer, the board of managers of the Company shall admit the OpCo Buyer as the sole member of the Company and the Seller shall cease to be a member of the Company;
(iii) deliver to the OpCo Buyer the Escrow Agreement, duly executed by the Seller;
(iv) deliver to the PropCo Buyer the fixed asset ledger of the Company and each Company Subsidiary as of the last day of the most recent calendar month prior to the Closing prepared in accordance with GAAP in all material respects;
(v) deliver to the PropCo Buyer all agreements, documents, instruments or certificates required to be delivered by the Seller at or prior to the Closing pursuant to the Section 3.03 of the Real Estate Purchase Agreement;
(vi) deliver to the PropCo Buyer a certificate of Seller’s chief financial officer (or other executive vested with similar duties) in the form of Exhibit D; and
(vii) deliver to the Buyers all other agreements, documents, instruments or certificates required to be delivered by the Seller at or prior to the Closing pursuant to Section 7.02 of this Agreement.
Appears in 1 contract
Transactions to be Effected at the Closing. i. (a) Sellers’ Representative shall deliver to Buyer, no less than one (1) business day before the Closing Date a written statement of the amount of Debt of the Company, specifying the final payment to be made at Closing by the Buyer as per Section 2.03(b)(iii), to pay out and discharge in full all such Debt and to effect the release and discharge of any Encumbrances securing such Debt. Any such Debt of the Company is referred to as the “Company Closing Debt”.
(b) At the Closing, concurrently Buyer shall:
(i) Execute, together with the OpCo Closing Principal Sellers, (a) a subscription agreement (the “Subscription Agreement”), pursuant to which the Principal Sellers shall agree and shall undertake to subscribe for the Subscribed Shares in the amounts and in exchange for the PropCo Purchase Price, Seller and PropCo Purchaser (or its designee) shall perform their respective obligations under the Real Estate Purchase Agreement, to effect the Real Estate Purchase and the PropCo Closing, in accordance with and subject to the terms and conditions proportions set forth in Exhibit C; and (b) a set-off agreement pursuant to which the Real Estate Purchase Principal Sellers agree to set off the amount of the Setoff Consideration owed to them by the Buyer for the Majority Shares pursuant to this Agreement (including against the conditions amounts they owe to the PropCo Closing set forth in Section 9 of the Real Estate Purchase Agreement); provided, however, that if PropCo Purchaser assigns the Real Estate Purchase Agreement to either one or more Subsidiaries or a debt financing source for the purpose of funding the transactions contemplated hereby pursuant to the terms of the Real Estate Purchase Agreement, PropCo Purchaser shall guarantee all of the obligations of its designee thereunder.
ii. Seller shall conduct a physical counting of the cash of Seller and its Affiliates located on the Premises as of the Reference Time (the “Cash Count”). The aggregate amounts of cash determined in accordance with the preceding sentence, absent any dispute from OpCo Purchaser or its representatives Buyer in connection with the Cash Count, shall be deemed an OpCo Acquired Asset and included in the determination subscription of the amount of Final Closing Net Working CapitalSubscribed Shares (the “Set Off Agreement”), subject and the Buyer agrees to adjustments pursuant set off the amounts owed to Section 4(d). To it by the extent not prohibited by applicable Gaming Authorities or applicable Law, OpCo Purchaser may have its representatives present during Principal Sellers in connection with the Cash Count and such representatives shall have the right to dispute or sign off on the due completion and outcome subscription of the Subscribed Shares, such that, following the execution and performance of such Set Off Agreement and the payment of the Initial Cash Count Consideration due to the Principal Sellers at Closing, the Buyer’s obligation to the Principal Sellers for the payment of the Setoff Consideration due to them in connection with the sale of the Majority Shares and the Principal Sellers’ obligation to the Buyer for the subscription of the Subscribed Shares are mutually and fully extinguished;
(ii) deliver to the Principal Sellers the Subscribed Shares, pro rata in accordance with each Principal Seller’s applicable portion of the Majority Shares, consisting of evidence of ownership of the Subscribed Shares, free and clear of all Encumbrances, as set forth in Exhibit C;
(iii) deliver to the Paying Agent the Closing Consideration and cause the Paying Agent promptly to:
(1) pay the Company Closing Debt, on behalf of the Company, to the creditors with respect thereto, as identified on Exhibit C, the amounts set forth on Exhibit C with respect to each such creditor;
(2) pay to each Principal Seller the amounts set forth on Exhibit C as Initial Cash Consideration;
(3) pay to the Company’s payroll processor the aggregate sum of the payments to be distributed to each Manager and to each Optionee who is an employee the amounts set forth on Exhibit C (with such aggregate amount shown on the Closing Date and Flow of Funds) as Initial Cash Consideration;
(A4) pay to each Minority Shareholder the amounts set forth in Exhibit C as Initial Cash Consideration;
(5) deposit to the extent such outcome is disputed, without limitation account designated by the Sellers’ Representative (as shown on the Closing Flow of either OpCo Purchaser’s or Seller’s rights under Section 4(d), and Funds memo as part of Exhibit C) the Sellers’ Rep Fund Amount;
(B6) pay to the extent applicable service providers, the Scheduled Transaction Expenses, as set forth on Exhibit C, by wire transfer of immediately available funds to the bank accounts previously designated in writing by such outcome is signed off onservice providers to Buyer;
(iv) provide to the Sellers the fully-effective and executed Bank LCs, shall be final and binding for purposes of determining Final Closing Net Working Capital; provided, however, that such representatives shall not interfere with Seller’s conduct issued by Intesa via Citibank
(v) provide to the applicable counterparty(ies) counterparts of the Cash Countother Transaction Documents required to be delivered by Buyer at the Closing pursuant to this Agreement, duly executed by Buyer.
(c) At the Closing, Company or the applicable Sellers shall deliver to Buyer:
(i) Instruments of assignment with respect to the Equity Interests, transferring title to the same to Buyer free and clear of all Encumbrances;
(ii) counterparts of the other Transaction Documents required to be delivered by Sellers at or prior to the Closing pursuant to this Agreement, duly executed by the applicable Seller(s);
(iii) executed copies of the Option Cancellation and Cash-Out Agreements from each of the Optionees;
(iv) written resignations, in the form attached to this Agreement as Exhibit D, effective as of the Closing Date, of
Appears in 1 contract
Transactions to be Effected at the Closing. i. (a) At the Closing, concurrently with Buyer Parent shall take, or cause to be taken, all actions to:
(i) pay or cause the OpCo Closing Equity Buying Entities and in exchange for Asset Buying Entities to pay to the PropCo Purchase PriceEquity Selling Entities and Seller Parent (on behalf of the Asset Selling Entities), Seller and PropCo Purchaser (or its designee) shall perform their respective obligations under allocated among the Real Estate Purchase Agreement, to effect the Real Estate Purchase Buying Entities and the PropCo Closing, Selling Entities in accordance with and subject the Provisional Allocation, by wire transfer of immediately available funds in euros to the terms account(s) designated in writing by Seller Parent (such designation to be delivered to Buyer Parent at least two (2) Business Days prior to the Closing Date), an aggregate amount equal to the Estimated Closing Cash Consideration;
(ii) convey and deliver to Seller Parent instruments of assumption, including tripartite deeds of novation, in form and substance reasonably acceptable to Seller Parent and Buyer Parent, duly executed by the applicable Buying Entity, evidencing the assumption of the Additional Assumed Liabilities;
(iii) deliver to Seller Parent the Provisional Section 338(g) Forms required to be delivered pursuant to Section 5.06(b);
(iv) deliver to Seller Parent its duly executed counterpart to the Transition Services Agreement, the Reverse Transition Services Agreement, the Distribution Agreement, the Intellectual Property Assignment Agreement, the Manufacturing and Supply Agreement and the Reverse Manufacturing and Supply Agreement;
(v) deliver to Seller Parent a duly executed counterpart to the French-language confirmatory transfer agreement (acte réitératif) in respect of the transfer of the French Acquired Equity Interests upon the Closing;
(vi) cause each Equity Buying Entity to deliver to Seller Parent a certified copy of the resolutions of the board of directors or other governing body of such Equity Buying Entity authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents to which such Equity Buying Entity is a party and the consummation of the Transactions to be consummated by such Equity Buying Entity;
(vii) pay to Seller Parent as consideration for services provided by it to Buyer Parent under the Transition Services Agreement, by wire transfer of immediately available funds in euros to the account designated in writing by Seller Parent (such designation to be delivered to Buyer Parent at least two (2) Business Days prior to the Closing Date), an amount equal to €25,000,000 as a partial advance payment of costs of those services under the Transition Services Agreement (the “TSA Fee Payment”);
(viii) deliver to Seller Parent two (2) originals of the Contingent Additional Amount Agreement duly signed by the Buying Entities; and
(ix) deliver to Seller Parent a certificate signed on behalf of Buyer Parent by a duly authorized officer of Buyer Parent stating that the conditions set forth in Section 6.03(a) and Section 6.03(b) have been satisfied.
(b) At the Real Estate Purchase Closing, the Swedish Equity Selling Entity shall take, and Seller Parent shall cause the Swedish Equity Selling Entity and any other applicable Subsidiary to take, all actions to:
(i) convey and deliver to the French Equity Buying Entity one duly completed signed transfer form (ordre de mouvement) in favor of the French Equity Buying Entity in respect of all the shares of Meda Holding SAS (“Meda Holding”), free and clear of any and all Liens, together with the updated share transfer register (registre des mouvements de titres), and the updated shareholder’s individual accounts (comptes individuels d’actionnaires) for Meda Holding, with entries made to record the transfer of all of the shares of Meda Holding to the French Equity Buying Entity on the Closing Date;
(ii) deliver to the French Equity Buying Entity the up-to-date share transfer register (registre des mouvements de titres) and shareholder’s individual accounts (comptes individuels d’actionnaires) of each other French Acquired Company, and the up-to-date shareholder assembly register (registre d’assemblées) of each French Acquired Company; and
(iii) deliver to Buyer Parent its duly executed counterpart of the confirmatory transfer agreement (acte réitératif) delivered by Buyer Parent in accordance with Section 1.04(a)(v).
(c) At the Closing, Seller Parent shall take, or cause to be taken, all actions to:
(i) cause the Asset Selling Entities to convey and deliver to the Asset Buying Entities duly executed instruments of assignment, in form and substance reasonably acceptable to the Asset Buying Entities, evidencing the sale, assignment, transfer, conveyance and delivery of the Additional Transferred Assets, free and clear of any and all Liens other than Permitted Liens;
(ii) convey and deliver to Buyer Parent instruments of assumption, including tripartite deeds contemplated by Section 1.04(a)(ii) duly executed by all parties thereto (other than the applicable Buying Entity);
(iii) deliver to Buyer Parent its duly executed counterpart to the Transition Services Agreement, the Reverse Transition Services Agreement, the Distribution Agreement, the Intellectual Property Assignment Agreement, the Manufacturing and Supply Agreement and the Reverse Manufacturing and Supply Agreement;
(including iv) deliver to Buyer Parent the Product Technical Files in a form reasonably satisfactory to Buyer Parent;
(v) cause each Equity Selling Entity to deliver to the Equity Buying Entities a certified copy of the resolutions of the board of directors or other governing body of such Equity Selling Entity authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents to which such Selling Entity is a party and the consummation of the Transactions to be consummated by it;
(vi) deliver to Buyer Parent a certificate signed on behalf of Seller Parent by a duly authorized officer of Seller Parent stating that the conditions to the PropCo Closing set forth in Section 9 6.02(a), Section 6.02(b), and Section 6.02(e) have been satisfied;
(vii) deliver to Buyer Parent completed and executed IRS Form W-9 in respect of Seller Parent;
(viii) deliver to Buyer Parent its duly executed original counterpart of the Real Estate Purchase AgreementContingent Additional Amount Agreement delivered by Buyer Parent in accordance with Section 1.04(a)(viii); providedand
(ix) in respect of the countries set forth on Section 1.04(c)(ix) of the Buyer Disclosure Letter, howeverdeliver to the applicable Asset Buying Entity, where possible and consistent with local practice, a certificate issued by the relevant tax authority stating that if PropCo Purchaser assigns the Real Estate Purchase Agreement business to either one be acquired is up to date with their tax obligations.
(d) In addition to any other action to be taken and to any other instrument to be executed or more Subsidiaries or a debt financing source for the purpose of funding the transactions contemplated hereby delivered pursuant to this Agreement, at the terms Closing the Italian Equity Selling Entity and the Italian Equity Buying Entity shall take, and Seller Parent shall cause the Italian Equity Selling Entity to take, and Buyer Parent shall cause the Italian Equity Buying Entity to take, all actions set forth below:
(i) the Italian Equity Selling Entity shall deliver to the Italian Equity Buying Entity the originals of the Real Estate Purchase Agreement, PropCo Purchaser shall guarantee all resignation letters of the obligations of its designee thereunder.
ii. Seller shall conduct a physical counting members of the cash board of Seller directors and its Affiliates located on of the Premises statutory auditors (if any) of the Italian Acquired Companies effective as of the Reference Time Closing Date, in substantially the form attached as Exhibit VII hereto;
(ii) the “Cash Count”)Italian Equity Buying Entity shall deliver to the Italian Equity Selling Entity a letter addressed to each resigning member of the board of directors and of the statutory auditors (if any) of the Italian Acquired Companies in substantially the form attached as Exhibit VIII hereto;
(iii) the Italian Equity Selling Entity shall endorse the shares representing one hundred percent (100%) of the corporate capital of Meda Pharma S.p.
A. to the Italian Equity Buying Entity, before the Italian notary public; and
(iv) a representative of the Italian Equity Buying Entity shall attend the shareholders’ meeting of each of the Italian Acquired Companies to be validly held in order to resolve upon (A) the acceptance of the resignations of the relevant members of the board of directors and of the statutory auditors, (B) the release and discharge, to the fullest extent permitted by applicable Law, of the resigning members of the board of directors or the statutory auditors of the relevant Italian Acquired Company from and against any and all liabilities arising out of their office as directors or statutory auditors of the relevant Italian Acquired Company at or prior to the Closing, and (C) the appointment of new director(s) and statutory auditors identified by the Italian Equity Buying Entity, in each case, in substantially the form attached as Exhibit IX hereto, effective as of the Closing.
(e) The Parties hereby agree that all actions and transactions that are required to take place at the Closing pursuant to this Section 1.04 shall take place simultaneously and shall be regarded as one interconnected transaction. The aggregate amounts As a consequence, at the option of cash determined the Party having an interest in accordance with the preceding sentenceperformance of any specific action or transaction, absent any dispute from OpCo Purchaser no action or its representatives in connection with the Cash Count, transaction above shall be deemed an OpCo Acquired Asset to have taken place, if and included in until all other actions and transactions representing the determination of the amount of Final Closing Net Working Capital, subject to adjustments pursuant to Section 4(d). To the extent not prohibited by applicable Gaming Authorities or applicable Law, OpCo Purchaser may have its representatives present during the Cash Count and such representatives shall have the right to dispute or sign off on the due completion and outcome of the Cash Count on the Closing Date and (A) to the extent such outcome is disputed, without limitation of either OpCo Purchaser’s or Seller’s rights under taken place as provided for by this Section 4(d), and (B) to the extent such outcome is signed off on, shall be final and binding for purposes of determining Final Closing Net Working Capital; provided, however, that such representatives shall not interfere with Seller’s conduct of the Cash Count1.04.
Appears in 1 contract
Sources: Transaction Agreement (Viatris Inc)
Transactions to be Effected at the Closing. i. At the Closing, concurrently with :
(a) the OpCo Closing and in exchange for the PropCo Purchase Price, Seller and PropCo Purchaser (or its designee) shall perform their respective obligations under the Real Estate Purchase Agreement, to effect the Real Estate Purchase Company and the PropCo ClosingSellers shall deliver to the Purchasers a compliance certificate to be provided jointly by the Company and the Sellers confirming that: (i) the Warranties made by the Company and each of the Sellers in this Agreement and any other Transaction Documents are true, correct and complete when made, and are true and correct and complete as of the Closing Date, subject to disclosures (if any) contained in accordance the Disclosure Letter (provided that no such disclosure as to a Sellers Fundamental Warranty shall qualify such Sellers Fundamental Warranty and no such disclosure as to a Company Fundamental Warranty shall qualify such Company Fundamental Warranty); (ii) each of the Sellers and the Company have performed and fully complied with and subject satisfied all agreements, obligations, conditions and covenants contained in this Agreement and any other Transaction Documents that are required to be performed or complied with by them on or before the terms and conditions set forth in the Real Estate Purchase Agreement (Closing Date, including the conditions precedent to the PropCo Closing set forth out in Section 9 Article VIII; and (iii) no event has occurred which has or is reasonably likely to have a Material Adverse Effect and (iv) no event of wrongdoing or accusation of wrongdoing on the part of the Real Estate Purchase Agreement); providedCompany or any Affiliate of Company, however, that if PropCo Purchaser assigns the Real Estate Purchase Agreement to either one or more Subsidiaries or a debt financing source for the purpose of funding the transactions contemplated hereby pursuant to the terms of the Real Estate Purchase Agreement, PropCo Purchaser shall guarantee all of the obligations of its designee thereunder.
ii. Seller shall conduct a physical counting of the cash of Seller and its Affiliates located on the Premises as part of the Reference Time (the “Cash Count”). The aggregate amounts any Seller or Affiliate of cash determined in accordance with the preceding sentence, absent any dispute from OpCo Purchaser or its representatives a Seller in connection with the Cash CountCompany or any Affiliate of Company, shall have occurred that materially adversely affects or would affect the reputation of, or results or would result in material negative publicity for, the Purchasers, the Company or any Affiliate of Purchasers or the Company (the “Compliance Certificate”);
(b) the Purchasers shall pay each of the Sellers by wire transfer of Rs. funds to a bank account designated by such Seller at least two Business Days prior to the Closing Date an amount equal to such Seller’s Share Consideration;
(c) a copy of the fully completed draft Form FC-TRS (along with the annexures required therein) shall be deemed an OpCo Acquired Asset submitted to the Authorised Dealer by each of the Sellers and included the Authorised Dealer’s confirmation that the same is in acceptable format and can be filed immediately upon Closing shall be obtained by the Sellers and provided to the Purchasers;
(d) the Sellers shall deliver to the Purchasers duly filled up and signed and undated irrevocable transfer instruction slips representing all of the Purchased Shares and containing irrevocable instructions to the Sellers’ depository participant(s), as applicable, to debit the Sellers’ depository participants accounts and to credit the Purchasers’ depository participant account for all of the Purchased Shares;
(e) the Sellers shall cause the Company to and the Company shall convene a meeting of the Board at which the following business shall be conducted in the determination following sequence and manner:
(i) upon receipt of Form FC-TRS duly certified by the authorized dealer of each Seller, the Board shall record the transfer of the amount relevant Purchased Shares to the Purchasers;
(ii) the Board shall approve and record the conversion of Final Closing Net Working Capitalthe Company to a private limited company (if not previously converted) and cause the Company to make all required filings including filings with the Registrar of Companies and obtain the Central Government’s approval for such conversion;
(iii) the Board shall be re-constituted in terms of the Shareholders Agreement to comprise of seven members (four nominees of the Purchasers and three nominees of the Sellers) and appropriate resignation letters (without liability to the Company) shall be obtained from such number of resigning Directors (including ▇. ▇▇▇▇▇▇) as is necessary to have a seven-member Board;
(iv) the Board shall approve the amendment to the articles of association of the Company substantially in the form set forth in Exhibit D, subject to adjustments the approval of the Shareholders and convening a meeting of its Shareholders for approving the said amendment to the articles of association;
(v) the Board shall approve the adoption by the Company of the Sony Pictures Entertainment Code of Business Conduct, the Sony Pictures Anti-Bribery Policy, all Sony Pictures Entertainment Inc. and Sony Corporation privacy and data protection policies, the Sony Finance Policy and all other policies of Sony Pictures Entertainment Inc. and Sony Corporation specified by Purchasers; and
(vi) the Board shall recommend to the Shareholders of the Company, and shall take all other required steps for, the appointment of PricewaterhouseCoopers to serve as the Accountant.
(f) the Sellers shall cause the Company to, and the Company shall, convene a meeting of the Shareholders at which the Shareholders shall (i) approve and record the conversion of the Company to a private limited company (if not previously converted) and cause the Company to take all required actions pursuant to Section 4(d). To such conversion, (ii) pass resolutions to amend the articles of association of the Company substantially as set forth in Exhibit D and (iii) remove the then current Accountant and appoint PricewaterhouseCoopers to serve as the Accountant.
(g) the Purchasers shall deliver to the Company consent letters from ⚫, ⚫, ⚫ and ⚫ to be elected as members of the Board and ⚫, ⚫, ⚫ and ⚫ shall be elected as members of the Board;
(h) within a period of 10 days15 Business Days from Closing, the Company shall:
(i) update and provide to the Purchasers and the Sellers a certified true copy of the extract of the register of directors to record the reconstitution of the Board;
(ii) update and provide to the Purchasers and the Sellers a certified true copy of the extract of the register of members recording the Purchasers as the shareholders of the Purchased Shares;
(iii) provide to the Purchasers certified true copies of all Board and Shareholder resolutions passed by the Company in connection with or at the Closing; and
(iv) make all necessary regulatory Filings and do all such other things that may be required under applicable Law or regulations in connection with the (i) the appointment of the Directors nominated by the Purchasers and the Sellers (to the extent not prohibited required) on the Board; and (iii) amendment of the articles of association of the Company in accordance with Section 6.9;
(i) the Sellers shall provide the Purchasers with a copy of a certified certificate evidencing the fair market value of the Shares pursuant to the discounted cash flow method prescribed by applicable Gaming Authorities or applicable Law, OpCo Purchaser may have its representatives present during issued by a chartered accountant or a SEBI Category I merchant banker; and
(j) the Cash Count and such representatives Parties shall have the right to dispute or sign off on the due completion and outcome deliver each of the Cash Count on documents, certificates and items required to be delivered by the Closing Date and (A) to the extent such outcome is disputed, without limitation of either OpCo Purchaser’s or Seller’s rights under Section 4(d), and (B) to the extent such outcome is signed off on, shall be final and binding for purposes of determining Final Closing Net Working Capital; provided, however, that such representatives shall not interfere with Seller’s conduct each of the Cash CountParties under Article VIII.
Appears in 1 contract
Sources: Share Purchase Agreement
Transactions to be Effected at the Closing. i. (a) At the Closing, concurrently with Buyer shall:
(i) deliver to the OpCo Shareholder Representative:
(A) the Closing Date Cash Payment, less the Purchase Price Adjustment Escrow Amount and in exchange for the PropCo Purchase PriceIndemnity Escrow Amount, Seller and PropCo Purchaser (or its designee) shall perform their respective obligations under the Real Estate Purchase Agreementby wire transfer of immediately available funds, to effect an account designated in writing by the Real Estate Purchase Shareholder Representative to Buyer no later than two (2) Business Days prior to the Closing Date (and the PropCo ClosingShareholder Representative hereby covenants and agrees to, within one (1) Business Day of receipt, remit such payment to Sellers in accordance with each Seller’s Applicable Percentage, unless the Shareholder Representative and subject the Sellers agree otherwise); and
(B) a copy of the irrevocable instructions to Buyer’s transfer agent instructing the transfer agent to deliver, on an expedited basis, the Buyer Stock to be issued in satisfaction of the Closing Date Stock Payment in book entry form, with each Seller receiving a portion of such Buyer Stock based on such Seller’s Applicable Percentage;
(C) the Registration Rights Agreement, duly executed by Buyer;
(D) the Subscription Agreement, duly executed by Buyer;
(E) the Escrow Agreement, duly executed by Buyer; and
(ii) pay, on behalf of the Acquired Companies or Sellers, the following amounts:
(A) Debt Like Items of the Acquired Companies payable at Closing per the Estimated Closing Working Capital Statement, by wire transfer of immediately available funds to the terms accounts and conditions set forth in the Real Estate Purchase Agreement amounts specified in the Estimated Closing Working Capital Statement; and
(including B) Indebtedness of the conditions Acquired Companies payable at Closing per the Estimated Closing Working Capital Statement, by wire transfer of immediately available funds to the PropCo accounts and in the amounts specified in the Estimated Closing set forth Working Capital Statement; and
(C) any Transaction Expenses unpaid at Closing per the Estimated Closing Working Capital Statement, by wire transfer of immediately available funds to the accounts and in Section 9 the amounts specified in the Estimated Closing Working Capital Statement; and
(iii) 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 Real Estate Purchase Agreement); providedEscrow Agent, however, that if PropCo Purchaser assigns the Real Estate Purchase Agreement to either one or more Subsidiaries or a debt financing source be held for the purpose of funding the transactions contemplated hereby pursuant to the terms of the Real Estate Purchase Agreement, PropCo Purchaser shall guarantee all of securing the obligations of its designee thereunder.Sellers in Section 2.03(d);
ii. Seller shall conduct a physical counting of (B) the cash of Seller Indemnity Escrow Amount (such amount, including any interest or other amounts earned thereon and its Affiliates located on the Premises as of the Reference Time (the “Cash Count”). The aggregate amounts of cash determined less any disbursements therefrom in accordance with the preceding sentenceEscrow Agreement, absent any dispute from OpCo Purchaser the “Indemnity Escrow Fund”) by wire transfer of immediately available funds to accounts designated by the Escrow Agent, to be held, for the purpose of securing Sellers’ obligations under Article VI and Article VII of this Agreement; and
(C) the Escrow Agreement.
(b) At the Closing, Sellers shall deliver to Buyer:
(i) stock certificates evidencing the Shares, free and clear of all Encumbrances, duly endorsed in blank or its representatives accompanied by stock powers or other instruments of transfer duly executed in connection blank (the “Stock Powers”), with the Cash Count, shall be deemed an OpCo Acquired Asset and included in the determination all required stock transfer tax stamps affixed thereto;
(ii) A certificate of the amount secretary or equivalent officer of Final each Acquired Company, in a form reasonably acceptable to Buyer, attaching and certifying copies of: (i) the articles of organization/incorporation (or equivalent) of each Acquired Company, as the same have been amended through the Closing Net Working CapitalDate; (ii) the bylaws (or equivalent) of each Acquired Company, subject as the same have been amended through the Closing Date; (iii) the resolutions of the board of directors of each Acquired Company authorizing the transactions contemplated by this Agreement and the taking of any and all actions deemed necessary or advisable to adjustments consummate the transactions contemplated herein; (iv) a certificate of existence of each Acquired Company issued by the Secretary of State of the State of Washington, dated within ten (10) Business Days of Closing;
(iii) from each Seller, a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that such Seller is not a foreign person within the meaning of Section 1445 of the Code (the “FIRPTA Certificates”);
(iv) resignations of the directors and officers of each Acquired Company pursuant to Section 4(d5.02 (the “Resignations”). To ;
(v) a duly executed Internal Revenue Service Form W-9 from each Seller;
(vi) payoff letters reflecting the extent not prohibited by applicable Gaming Authorities or applicable Law, OpCo Purchaser may have its representatives present during the Cash Count amounts and such representatives shall have the right payment instructions necessary to dispute or sign off on the due completion and outcome satisfy all outstanding Indebtedness of the Cash Count on each Acquired Company as of the Closing Date (the “Payoff Letters”);
(vii) a waiver and release from each Seller, in the form attached hereto as Exhibit E (Athe “Shareholder Waivers”);
(viii) that certain Amendment to Lease Agreement, dated the date hereof, with respect to the extent such outcome is disputedlease by the Company of the premises commonly known as 1705 132nd Avenue NE, without limitation Bellevue, Washington, in form and substance satisfactory to Buyer (the “Amendment to Current Lease”);
(ix) that certain Lease Agreement, dated the date hereof, with respect to the lease by the Company of either OpCo Purchaser’s or Seller’s rights under Section 4(dthe premises commonly known as 1▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, in form and substance satisfactory to Buyer (the “Future Lease”);
(x) that certain Employment Agreement, in the form attached hereto as Exhibit F (the “Employment Agreement”), dated the date hereof, executed by W▇▇▇▇ and (B) the Company with respect to the extent such outcome is signed off onpost-Closing employment of W▇▇▇▇ by the Company; and
(xi) the Escrow Agreement, shall be final and binding for purposes of determining Final Closing Net Working Capital; provided, however, that such representatives shall not interfere with Seller’s conduct of duly executed by the Cash CountShareholder Representative.
Appears in 1 contract
Sources: Share Purchase Agreement (Allied Motion Technologies Inc)
Transactions to be Effected at the Closing. i. At the Closing:
(a) the ▇▇▇▇▇▇▇▇ Seller shall deliver to Purchaser certificates representing the ▇▇▇▇▇▇▇▇ Seller Interest, concurrently duly endorsed to Purchaser or accompanied by membership interest powers duly endorsed to Purchaser, in proper form for transfer, with appropriate stock transfer Tax stamps, if any, affixed, which, together with the OpCo Closing and in exchange for certificates delivered to Purchaser by the PropCo Purchase Price▇▇▇▇▇▇▇▇ Seller, Seller and PropCo Purchaser (or its designee) shall perform their respective obligations under the Real Estate Purchase Agreement, to effect the Real Estate Purchase and the PropCo Closing, in accordance with and subject to the terms and conditions set forth in the Real Estate Purchase Agreement (including the conditions to the PropCo Closing set forth in Section 9 which represents 20% of the Real Estate Purchase Agreement); provided, however, that if PropCo Purchaser assigns the Real Estate Purchase Agreement to either one or more Subsidiaries or a debt financing source for the purpose of funding the transactions contemplated hereby pursuant to the terms membership interests of the Real Estate Purchase Agreement, PropCo Purchaser shall guarantee all of the obligations of its designee thereunder.
ii. Seller shall conduct a physical counting of the cash of Seller and its Affiliates located on the Premises LLC outstanding as of the Reference Time Closing Date.
(b) the “Cash Count”). The aggregate amounts of cash determined ▇▇▇▇▇▇ Seller shall deliver to Purchaser certificates representing the ▇▇▇▇▇▇ Seller Interest, duly endorsed to Purchaser or accompanied by membership interest powers duly endorsed to Purchaser, in accordance proper form for transfer, with appropriate stock transfer Tax stamps, if any, affixed, which, together with the preceding sentencecertificates delivered to Purchaser by the ▇▇▇▇▇▇ Seller, absent any dispute from OpCo which represents 20% of the membership interests of the LLC outstanding as of the Closing Date.
(c) the ▇▇▇▇▇▇ Seller shall deliver to Purchaser certificates representing the ▇▇▇▇▇▇ Seller Interest, duly endorsed to Purchaser or its representatives accompanied by membership interest powers duly endorsed to Purchaser, in connection proper form for transfer, with appropriate stock transfer Tax stamps, if any, affixed, which, together with the Cash Countcertificates delivered to Purchaser by the ▇▇▇▇▇▇ Seller, shall be deemed an OpCo Acquired Asset and included in the determination which represents 20% of the amount of Final Closing Net Working Capital, subject to adjustments pursuant to Section 4(d). To the extent not prohibited by applicable Gaming Authorities or applicable Law, OpCo Purchaser may have its representatives present during the Cash Count and such representatives shall have the right to dispute or sign off on the due completion and outcome membership interests of the Cash Count on LLC outstanding as of the Closing Date.
(d) Purchaser shall deliver to the ▇▇▇▇▇▇▇▇ Seller: (i) the Closing Date and (A) to Cash Purchase Price for the extent such outcome is disputed, without limitation of either OpCo Purchaser’s or ▇▇▇▇▇▇▇▇ Seller’s rights under Section 4(d), and (Bii) a certificate representing the Closing Date Purchaser Stock for the ▇▇▇▇▇▇▇▇ Seller issued to the extent such outcome is signed off on▇▇▇▇▇▇▇▇ Seller.
(e) Purchaser shall deliver to the ▇▇▇▇▇▇ Seller: (i) the Closing Date Cash Purchase Price for the ▇▇▇▇▇▇ Seller, and (ii) a certificate representing the Closing Date Purchaser Stock for the ▇▇▇▇▇▇ Seller issued to the ▇▇▇▇▇▇ Seller.
(f) Purchaser shall be final deliver to the ▇▇▇▇▇▇ Seller: (i) the Closing Date Cash Purchase Price for the ▇▇▇▇▇▇ Seller, and binding (ii) a certificate representing the Closing Date Purchaser Stock for purposes of determining Final Closing Net Working Capital; provided, however, that such representatives shall not interfere with the ▇▇▇▇▇▇ Seller issued to the ▇▇▇▇▇▇ Seller’s conduct .
(g) Purchaser shall: (i) deliver by wire transfer to the applicable bank account(s) designated in writing by the LLC any other Indebtedness of the Cash CountLLC, if any, if such amounts are not paid off prior to the Closing Date, if applicable and (ii) deliver payment to the applicable accounts designated therefore of all Transaction Expenses.
(h) If there are any other liens encumbering the partnership interests being purchased from any of the Sellers, then the 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 the purchase price payable to the applicable Seller(s).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Paincare Holdings Inc)
Transactions to be Effected at the Closing. i. At the Closing:
(a) Seller shall deliver to Purchaser, concurrently with and shall cause each applicable Selling Subsidiary to deliver to Purchaser, such appropriately executed special warranty deeds or their equivalent (in recordable form), customary owner’s affidavits, transfer tax forms, bills of sale, assignments and such other instruments as may be required in order to transfer the OpCo Acquired Assets to Purchaser, in each case in form and substance reasonably satisfactory to the parties;
(b) Seller shall deliver to Purchaser, and shall cause each Selling Subsidiary to deliver to Purchaser, non-foreign person affidavits, dated as of the Closing Date, sworn under penalty of perjury and in exchange for form and substance required under the PropCo Treasury Regulations issued under Section 1445 of the Code, certifying that it is not a “foreign person” as defined in Section 1445 of the Code;
(c) Seller shall deliver to Purchaser a certificate, dated as of the Closing Date and duly executed by an executive officer of Seller, certifying that the condition in Section 6.02(a) has been satisfied;
(d) Purchaser shall deliver to Seller (or its designee), by wire transfer to a bank account designated in writing by Seller (such designation to be made at least one (1) business day prior to the Closing Date), immediately available funds in an amount equal to the Base Purchase Price, ;
(e) Purchaser shall deliver to Seller and PropCo Purchaser (or its designee) shall perform their respective obligations under the Real Estate Purchase Agreement, to effect the Real Estate Purchase and the PropCo Closing, in accordance with and subject appropriately executed assumption agreements relating to the terms Assumed Liabilities in form and conditions set forth in the Real Estate Purchase Agreement (including the conditions substance reasonably satisfactory to the PropCo Closing set forth in Section 9 of the Real Estate Purchase Agreement); provided, however, that if PropCo Purchaser assigns the Real Estate Purchase Agreement to either one or more Subsidiaries or a debt financing source for the purpose of funding the transactions contemplated hereby pursuant to the terms of the Real Estate Purchase Agreement, PropCo Purchaser shall guarantee all of the obligations of its designee thereunder.parties;
ii. Seller shall conduct a physical counting of the cash (f) each of Seller and its Affiliates located on Purchaser shall execute and deliver a transition services agreement substantially in the Premises as form of the Reference Time Exhibit A hereto; and
(the “Cash Count”). The aggregate amounts of cash determined in accordance with the preceding sentence, absent any dispute from OpCo g) if either Purchaser or its representatives Seller so requests, Seller shall deliver the documents described in connection with subparagraph (a) above, which relate to MeadowWood Hospital, to the Cash Count, shall be deemed an OpCo Acquired Asset and included in the determination of the amount of Final Closing Net Working Capital, subject to adjustments Title Company pursuant to Section 4(d). To the extent not prohibited by applicable Gaming Authorities or applicable Law, OpCo Purchaser may have its representatives present during the Cash Count and such representatives shall have the right to dispute or sign off on the due completion and outcome of the Cash Count on the Closing Date and (A) escrow instructions reasonably satisfactory to the extent such outcome is disputed, without limitation of either OpCo Purchaser’s or Seller’s rights under Section 4(d), and (B) to the extent such outcome is signed off on, shall be final and binding for purposes of determining Final Closing Net Working Capital; provided, however, that such representatives shall not interfere with Seller’s conduct of the Cash Countparties.
Appears in 1 contract