Deliveries at the Closing At the Closing, (i) Seller will deliver to Purchaser the various agreements, certificates, instruments, and documents referred to in Section 8.1 below; (ii) Purchaser will deliver to Seller the various certificates, instruments, and documents referred to in Section 8.2 below; (iii) Seller, and Intervener, where applicable, will execute, acknowledge (if appropriate), and/or deliver to Purchaser (A) a xxxx of sale substantially in the form attached hereto as Exhibit “A”, (B) a real estate limited warranty deed executed by 1245 Properties in substantially the form attached hereto as Exhibit “F” (C) an assignment of Intellectual Property rights in substantially the forms attached hereto as Exhibit “B”, (D) a counterpart of the shared services agreement in substantially the form attached hereto as Exhibit “C” (the “Shared Services Agreement”), (E) a Seller non-compete and non-solicitation agreement in substantially the form attached hereto as Exhibit “D”, (F) a counterpart to an assignment and assumption agreement in substantially the form attached hereto as Exhibit “E” (the “Assignment and Assumption”), (G) an assignment of each Real Property Lease in substantially the form of Exhibit “O” attached hereto, (H) to the extent required under Section 6.2(b), a counterpart to the management agreement in substantially the form attached hereto as Exhibit “R” and (I) such other instruments of sale, transfer, conveyance, and assignment as Purchaser and its counsel reasonably may request, including assignments of all domain names involved; (iv) Purchaser will execute, acknowledge (if appropriate), and deliver to Seller (A) a counterpart of the Assignment and Assumption, (B) a counterpart of the Shared Services Agreement, (C) to the extent required under Section 6.2(b), a counterpart to the management agreement in substantially the form attached hereto as Exhibit “R” and (D) such other instruments of assumption as Seller and its counsel reasonably may request; and (v) Purchaser will deliver to Seller the Purchase Price,
Actions at the Closing Simultaneously with the execution of this Agreement or as with regard to the transfer of securities as soon thereafter as is practicable:
(a) The Seller shall deliver to the Company (i) a copy of a certificate of good standing (or similar documents applicable for such jurisdictions) for the Seller, certified as of a date no later than five (5) Business Days prior to the date hereof from the proper Governmental Authority of the Seller's jurisdiction of organization; and (ii) a certificate from the Seller’s secretary or director certifying as to the validity and effectiveness of, and confirming delivery of, (x) copies of the Seller’s Organizational Documents as in effect as of the date hereof, (y) copies of the resolutions of its board of directors and the Shareholders authorizing the execution, delivery and performance of this Agreement and each document to which they are a party or bound, and the consummation of the Exchange, the Series A Preferred Exchange and each of the transactions contemplated hereby, and (z) the incumbency of directors authorized to execute this Agreement or any other document to which the Seller is or is required to be a party or otherwise bound.
(b) The Company shall deliver to the Seller (i) a copy of a certificate of good standing for the Company, certified as of a date no later than five (5) Business Days prior to the date hereof from the proper Governmental Authority of the Company’s jurisdiction of organization; and (ii) a certificate from the Company’s secretary or authorized officer certifying as to the validity and effectiveness of, and confirming delivery of, (x) copies of the Company’s Organizational Documents as in effect as of the date hereof, (y) copies of the resolutions of its board of directors authorizing the execution, delivery and performance of this Agreement and each document to which it is a party or bound, respectively, and the consummation of the Exchange, the Series A Preferred Exchange and each of the transactions contemplated hereby, including the appointment of the individuals nominated by the Seller as the directors and Mr. Xxxxx Xxxxxx as the Chief Executive Office of the Company with immediate effect at Closing, and (z) the incumbency of officers or directors authorized to execute this Agreement or any other document to which the Company is or is required to be a party or otherwise bound.
(c) Each of the Shareholders shall deliver to the Company the certificate(s) representing their Seller Securities owned by each such Shareholder, duly endorsed or accompanied by stock powers duly executed in blank and otherwise in a form acceptable for transfer on the books of the Company, such certificates may be delivered to the Company’s registrar or transfer agent.
(d) The Company shall deliver to the Shareholders a copy of the transfer agent instruction letter that instructs the Company’s stock transfer agent to issue the Series B Preferred Stock in book entry form to the Shareholders calculated in accordance with Section 2.1(b).
(e) The Company Preferred Shareholder shall deliver to the Company the cancellation request and executed agreements as needed for surrendering of all of the Series A Preferred Stock owned by him on the books of the Company, such cancellation request may be delivered to the Company’s transfer agent.
(f) The Company shall deliver to the Shareholders a copy of the transfer agent instruction letter that instructs the Company’s stock transfer agent to issue all authorized shares of the Series A Preferred Stock in book entry form to the Shareholders.
(g) The Company shall deliver to the Company Preferred Shareholder a copy of the transfer agent instruction letter that instructs the Company’s stock transfer agent to issue the Series B Preferred Stock in book entry form to the Company Preferred Shareholder calculated in accordance with Section 2.1(c).
(h) The Company shall deliver to the Seller a copy of the written resignation of Xx. Xxx Xxxx from his position as Chief Executive Officer of the Company.
(i) The Shareholders and the Company Preferred Shareholder shall deliver to the Company counterparts duly executed by them to the Lock-Up Agreement and the Registration Rights Agreement.
(j) The Company shall deliver to the Seller duly executed copies of the Employment Agreements.
(k) The Company and the Company Preferred Shareholder shall deliver validly executed transfer documents in accordance with Section 7.3 dated as of the date hereof and effective as of the next Business Day after the date hereof.
Seller’s Deliveries at Closing At the Closing and unless otherwise waived in writing by the Buyer, the Sellers shall deliver to the Buyer the following, each of which shall be in a form reasonably acceptable to the Buyer (collectively, "Sellers' Closing Documents"):
(a) The Bill of Sale, duly executed and notarized by XeQute;
(b) All Third Party Consents and the release of all Liens on the Assets by the Lien Holders, together with the Instruments of Assignment and Assumption, duly executed by XeQute;
(c) The Sellers' Officer's Certificates, duly executed on behalf of Vertex and XeQute;
(d) Certified copies of any resolutions required to duly authorize and approve the Contemplated Transaction and the execution, performance and delivery of this Agreement, Sellers' Closing Documents and of all of the other documents to be executed and performed by the Sellers in connection with the Contemplated Transaction;
(e) The duly executed opinion of the Sellers' counsel, dated as of the Closing Date and addressed to the Buyer ("Sellers' Opinion"), in form and substance as set forth in the form annexed to this Agreement as Exhibit C and subject to the standard exceptions set forth in Sellers' Opinion. In rendering Sellers' Opinion, the Sellers' counsel may rely upon certificates of governmental officials and may place reasonable reliance upon certificates of the Sellers; and
(f) Such other instrument and documents, as the Buyer and the Buyer's counsel reasonably deem necessary or desirable in order to consummate the Contemplated Transaction, including without limitation evidence of the Sellers having taken all steps required to be taken by them prior to or at Closing under Article VI and Article VII hereof, including evidence of having obtained directors and officers liability insurance with the coverage described therein and paid the premium for same at the Closing.
Deliveries at Closing (a) At or prior to the Closing, the Company, TopCo, or the Members’ Representative shall deliver, or cause to be delivered, to Buyer:
(i) evidence of the issuance of the Purchased Units in a form reasonably acceptable to Buyer, vesting all right, title and interest in such Purchased Units in Buyer;
(ii) the Transaction Documents executed by the Company, TopCo, and the Members, as applicable, and all other agreements, documents, instruments or certificates required to be delivered by the Company, TopCo, and the Members at or prior to the Closing pursuant to Article VII;
(iii) the Escrow Agreement, duly executed by the Members’ Representative and TopCo;
(iv) the Payment Agent Agreement, duly executed by the Members’ Representative, TopCo, and the Payment Agent;
(v) the Company Closing Certificate;
(vi) written certification by the Chief Executive Officer of each of the Company and Pearl of the closing of the acquisition of the assets of Pearl in accordance with the Pearl Acquisition Agreement on the Closing Date (such acquisition, the “Pearl Acquisition”), including, without limitation, the execution and delivery of all documents required for closing and the satisfaction of all other conditions to closing subject only to funding of the Pearl Purchase Price on the Closing Date pursuant to this Agreement;
(vii) the Payoff Letters and evidence in form satisfactory to Buyer that all Liens relating to the Company and Company Assets shall have been released in full, other than Permitted Liens;
(viii) a written acknowledgement by TopCo in form satisfactory to Buyer that the Company Note is to be satisfied in full upon the payment of the Purchase Price;
(ix) an IRS Form W-9 (or other proof of exemption from withholding under Section 1445 and 1446(f) of the Code in connection with the Transactions reasonably satisfactory to Buyer) validly executed by each Member and TopCo;
(x) evidence reasonably satisfactory to Buyer that all security interests and other Liens, other than Permitted Liens, in any assets of the Company have been released prior to or shall be released simultaneously with the Closing;
(xi) evidence of termination of the agreements listed on Schedule 7.9;
(xii) the deliverables of the Company and Members set forth in Article VII;
(xiii) completion of the RSM Xxxxxxxx-Xxxxx audit and delivery of the RSM report;
(xiv) a finalized forgiveness application in the form prescribed by the PPP Lender (the “PPP Forgiveness Application”) with all supporting documentation including, but not limited to, evidence of each of the amounts used in the forgiveness amount calculation therein, together with a certificate executed by the Chief Executive Officer of the Company, in form and substance reasonably satisfactory to Purchaser, certifying that the PPP Loan Forgiveness Application was submitted to the PPP Lender and attaching a copy of each of the PPP Forgiveness Application and the resolutions of the Managers of the Company approving the PPP Forgiveness Application (such resolutions the “PPP Forgiveness Board Authorization”).
(b) At or prior to the Closing, Buyer shall deliver or cause to be delivered the following:
(i) by wire transfer of immediately available funds to the account of the Payment Agent on behalf of the Company for further payment to the Members on behalf of TopCo pursuant to the Redemption, cash in an amount equal to the Estimated Cash Consideration, less the sum of (y) the Escrow Funds, plus (z) the Representative Expense Fund (the “Closing Cash Consideration”), and less the Pearl Purchase Price;
(ii) to the Exchange Agent the Buyer Shares for the account of the Company for immediate distribution to TopCo in connection with the Company Note Repayment, and then to the Members pursuant to the Redemptions (the “Closing Buyer Shares Consideration” and, together with the Closing Cash Consideration, the “Closing Payment”), which Buyer Shares will be delivered in book entry (electronic form);
(iii) cash in an amount equal to the Pearl Purchase Price to Pearl on behalf of the Company, by wire transfer of immediately available funds as set forth in the Initial Consideration Spreadsheet;
(iv) cash in an amount equal to the Representative Expense Fund to the Members’ Representative, by wire transfer of immediately available funds as set forth in the Initial Consideration Spreadsheet;
(v) cash in an amount equal to the Company Transaction Expenses set forth in the Initial Consideration Spreadsheet, by wire transfer of immediately available funds, to each of the payees set forth in such Initial Consideration Spreadsheet;
(vi) cash in an amount equal to the Closing Indebtedness Amount set forth in the Initial Consideration Spreadsheet each of the payees set forth in such Initial Consideration Spreadsheet, to the extent applicable;
(vii) cash in an amount equal to the PPP Loan Escrow Amount, by wire transfer of immediately available funds, to the PPP Lender as set forth in the Initial Consideration Spreadsheet;
(viii) the Buyer Closing Certificate to the Members’ Representative;
(ix) the Escrow Agreement, duly executed by Buyer and the Escrow Agent, to the Members’ Representative and TopCo;
(x) the Payment Agent Agreement, duly executed by Buyer, to the Members’ Representative; and
(xi) to the Members’ Representative and TopCo, the Transaction Documents executed by Buyer, as applicable, including all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Article VIII.
Closing Deliveries by Seller At the Closing, Seller will deliver, or cause to be delivered, to Purchaser the following:
(a) the officer’s certificate required to be delivered pursuant Section 8.1(a) and Section 8.1(b);
(b) the Instrument of Assignment, duly executed by Seller;
(c) original executed counterparts of the unanimous shareholder or other applicable equity holder resolutions of each Entity (which will at the Closing also be executed by the Purchaser), approving:
(i) the resignations, effective as of the Closing Date, of the directors (or equivalent) of each Entity, expressly releasing, effective as of the Closing Date, the respective Entity, the Seller and the Purchaser from any and all claims and actions arising out of their services as a director (other than claims for indemnity or insurance), and themselves obtaining a full release from the Entities and the Purchaser from any and all claims and actions (except for those resulting from fraud, bad faith and/or willful misconduct) resulting from the due performance of their respective duties as directors;
(ii) the appointment of new directors (or equivalent) of the respective Entity as determined by Purchaser; and
(iii) the revocation of all powers of attorney in existence as of the Closing (except for those identified by Purchaser in writing no later than five Business Days prior to the Closing Date) and the granting of powers of attorney to the Persons determined by Purchaser.
(d) executed resignations of the directors (or equivalent) and officers, solely in their capacity as directors (or equivalent) or officers, as applicable, of each Entity other than those directors (or equivalent) and officers specified by Purchaser to Seller no later than the second Business Day prior to the Closing as exempt from this requirement (the “Resigning Individuals”);
(e) the Transition Services Agreement, duly executed by the Company and the other parties thereto;
(f) the Amendment to Trademark Sublicense Agreement, duly executed by NII Holdings and the Company;
(g) the amendments and releases, duly executed by each applicable party, referred to in Section 3.5 or Section 7.8;
(h) customary pay-off letters duly executed by CDB and reasonably satisfactory to Purchaser (the “Pay-Off Letters”) confirming that, upon receipt by the party or parties identified therein of the Pay-Off Amount, the CDB Credit Facilities shall have been paid in full and all Encumbrances provided thereunder shall have been released;
(i) originals of the Corporate Records (which may be delivered at the Company’s principal executive offices) together with a certificate issued by each Entity’s and Company Parent’s secretary certifying that the Corporate Records of the applicable Entity or Company Parent comply in all material respects with applicable Laws;
(j) the original share certificates or evidence of other equity interests, as applicable (where required by applicable Law) of each applicable Entity reflecting the capital structure set forth in Section 5.5(a) of the Seller Disclosure Schedule;
(k) a certified copy of the Sale Order, as entered by the Bankruptcy Court;
(l) an executed agreement between Company Parent and Seller, in form and substance reasonably satisfactory to Purchaser, effecting the Seller Liability Assumption and Company Parent Novation (as defined in the Sale Order);
(m) evidence reasonably satisfactory to Purchaser that (i) the Uruguay Divestiture has been consummated and (ii) the requirements of Section 8.1(d) and Section 8.1(e) have been satisfied;
(n) an executed original termination letter of trust agreement number F115/2000 (the “Mifel Trust”) duly executed by Banca Mifel, S.A., in its capacity as trustee thereunder and by all the settlors/beneficiaries thereunder certifying that the Mifel Trust has been duly terminated releasing all parties thereunder from any and all liability in connection therewith;
(o) any releases reasonably requested by Purchaser pursuant to, and copies of customary corporate documents effecting the netting, contribution or distribution contemplated by, Section 3.5; and
(p) each of the Section 7.8 Terminations and, to the extent obtained as of the Closing Date, each of the Section 7.8 Instruments and Third Party Consents, in each case, executed and delivered by each party thereto.
Closing Deliveries by Buyer Buyer shall have delivered or caused --------------------------- to be delivered to Sellers:
(i) the Purchase Price to Sellers by wire transfer in immediately available funds to the accounts designated by Sellers;
(ii) a certificate of an officer of Buyer substantially in the form of Exhibit A attached hereto to evidence compliance with Section 5.1 --------- ----------- hereof;
(iii) an Assignment and Assumption Agreement by and among Buyer and Sellers substantially in the form of Exhibit B attached hereto (the --------- "General Assignment"), duly executed by Buyer as of the Closing Date;
(iv) a License Agreement by and between Buyer and the Company for the licensing by Buyer to the Company of certain Purchased Assets necessary for the AOBR operations of the Company, substantially in the form of Exhibit C to be attached hereto (the "License --------- Agreement"), duly executed by Buyer;
(v) an Independent Contractor Agreement by and between Buyer and Xxxxxxx for the transition of the Purchased Assets from the Company to Buyer (the "Independent Contractor Agreement"), which Independent Contractor Agreement shall be executed by Buyer and Xxxxxxx by no later than December 15, 1998;
(1) certified copies of the Certificate of Incorporation and Bylaws of COMPS and (2) certificate of good standing for COMPS issued by the appropriate governmental office of its state of incorporation and each state in which it is qualified to do business;
(vii) such other documents as Sellers may reasonably request for the purpose of facilitating the consummation of the transactions contemplated herein.
Closing Deliveries by Purchaser At the Closing, Purchaser shall deliver the Consideration to the Sellers by wire transfer of immediately available funds in United States dollars to such account or accounts as the Sellers may direct by written notice to Purchaser.
Transactions at the Closing The following transactions shall take place at the Closing:
(a) Seller shall enter into (as applicable) (and in the case of certain Leases, Reynxxxx) xxd deliver to Buyer: (i) the Bill xx Sale, (ii) the Assignment of Contracts, (iii) the Assignment of Site Leases, (iv) the Assignment of Permits, (v) the Leases, (vi) all applicable Tax Clearances, and (vii) other instruments of transfer, evidence of consent and all other related documents as may be necessary to evidence or perfect the sale, assignment, transfer, and conveyance of good title to all of the Purchased Assets, in each case free and clear of all Security Interests and Encumbrances. Seller shall also deliver to Buyer all Books and Records, including the originals of the Advertising Contracts and Site Leases.
(b) Buyer shall deliver to Seller the Purchase Price, as adjusted pursuant to Section 2.6, by wire transfer of immediately available funds.
(c) Buyer shall enter into (as applicable) and deliver to Seller: (i) the Bill xx Sale, (ii) the Assignment of Contracts, (iii) the Assignment of Site Leases, (iv) the Assignment of Permits, (v) the Leases, and (vi) other assumption agreements, instruments and other documents as may be necessary to evidence the assumption by Buyer of the Assumed Liabilities.
(d) The Parties shall also deliver to each other the agreements, instruments, opinions, certificates, and other documents referred to in this Agreement.
Closing Deliveries (a) At the Closing, Compost shall deliver to the Purchaser:
(i) certificates representing the Company Common Stock, duly endorsed for transfer to the Purchaser or accompanied by duly executed assignment documents, which shall transfer to the Purchaser good and valid title to the Company Common Stock, free and clear of all liens, claims, restrictions and encumbrances of any nature whatsoever;
(ii) evidence of all consents, waivers and/or approvals in form reasonably acceptable to the Purchaser with respect to the transactions contemplated in this Agreement as further described on Schedule 5.3;
(iii) Limited Release of Claims Agreements executed by Compost, Wasteco Ventures Limited, a British Virgin Islands corporation ("Wasteco"), Wafra Acquisition Fund 7, L.P., executing such Limited Release solely to evidence its lack of objection to the execution of such document by Wasteco ("Wafra"), Xxx Xxxxxxxxx ("Waxenbaum"), Xxxxx Xxxxx ("Xxxxx") and Xxxxxx X. Xxxxx ("Xxxxx") releasing the Company in the forms attached hereto as Exhibits C-1 through C-5;
(iv) all corporate, accounting, business and tax records of the Company;
(v) a legal opinion from Xxxxxxxxx Traurig, counsel to Compost, in a form attached hereto as Exhibit D.
(vi) Employment and Covenant Not to Compete Agreements between the Purchaser and each of Xxxxxx X. Xxxxx and Xxx Xxxxxxxxx, attached as Exhibit E hereto; and
(vii) new real property lease with respect to the office property owned by an affiliate of Xxxxx, and located at 000 Xxxxxx Xxxx, Denville, New Jersey 07834, in the form attached hereto as Exhibit F;
(viii) Covenant Not to Compete Agreement between Compost and the Purchaser, in the form attached hereto as Exhibit G.
(ix) Certificate of Incumbency of Compost;
(x) Good Standing Certificate of the Company;
(xi) Good Standing Certificate of Compost; and
(xii) Earnout Agreement between Compost and the Purchaser in the form attached hereto as Exhibit H (the "Earnout Agreement").
(b) At the Closing, the Purchaser shall deliver the following to Compost:
(i) $37,500,000 as adjusted by the Estimated Adjustment Amount set forth in Section 3.3;
(ii) Employment and Covenant Not to Compete Agreements between the Purchaser and each of Xxxxxx X. Xxxxx and Xxx Xxxxxxxxx, attached as Exhibit E;
(iii) Earnout Agreement, attached as Exhibit H;
(A) The Purchaser shall either provide documents confirming the removal of Compost from any and all personal guaranties and/or surety obligations listed on Schedule 3.4(b)(iv) or, alternatively, the Purchaser may provide an unsecured indemnity to Compost with respect to the Compost guaranties and surety obligations reasonably satisfactory to Compost and the Purchaser, and (B) the Purchaser shall either provide documents confirming the removal of Xxxxx from any and all personal guaranties and/or surety obligations listed on Schedule 3.4(b)(iv) or provide Xxxxx with a financial guaranty bond enforceable in the State of New Jersey from AIG or National Union (or another insurer acceptable to Xxxxx in his sole discretion) (the "Insurer") providing for payment directly to Safeco Insurance Company of the full amount of any such guaranty or surety obligation within 15 days after Xxxxx provides written notice to such Insurer that a formal demand has been made against Xxxxx. The bond may provide that if the Insurer deems the claim unjustified, the Insurer may defend against such claim in the name and place of Xxxxx and shall indemnify and hold him harmless from any cost, expense (including but not limited to legal fees) or liability that may arise out of the failure to pay and any delay in payment;
(v) a legal opinion of Xxxxx Liddell & Xxxx LLP, counsel to the Purchaser, in a form attached hereto as Exhibit I;
(vi) Good Standing Certificate of Purchaser; and
(vii) Incumbency Certificate of Purchaser ARTICLE IV
Seller’s Obligations at the Closing At the Closing, Seller will do, or cause to be done, the following:
