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.
Transactions to be Effected at the Closing At the Closing:
(a) Purchaser shall deliver or cause to be delivered to Sellers, payment by wire transfer of immediately available funds to bank accounts designated in writing by Sellers at least two (2) Business Days prior to the Closing Date, an aggregate amount equal to the Initial Closing Date Amount (with such aggregate amount to be split between such bank accounts as may be designated in writing by Sellers);
(b) Sellers shall deliver to Purchaser any certificates representing any certificated Transferred Equity Interests and customary instruments of transfer and assignment of the Transferred Equity Interests, in form and substance reasonably satisfactory to Purchaser, duly executed by Sellers, as applicable;
(c) Sellers shall deliver to Purchaser the certificate required to be delivered pursuant to Section 7.2(c);
(d) Purchaser shall deliver to Sellers the certificate required to be delivered pursuant to Section 7.3(c);
(e) Except as set forth on Section 2.4(e) of the Seller Disclosure Letter, Sellers shall deliver to Purchaser evidence reasonably satisfactory to Purchaser of the release and termination effective as of the Closing of (i) any Liens (other than Permitted Liens) with respect to the Acquired Subsidiaries, (ii) any Liens (other than those arising under applicable securities Laws) with respect to the Transferred Equity Interests and (iii) any and all Indebtedness for borrowed money of, or guarantees of indebtedness for borrowed money provided by, any of the Acquired Subsidiaries other than in the case of clause (iii) Indebtedness under Embarq Corporation’s 7.995% Notes due 2036 issued under the Embarq Indenture;
(f) Sellers shall deliver to Purchaser, and Purchaser shall deliver to Sellers, the Transition Services Agreement in the form attached as Exhibit A (the “Transition Services Agreement”);
(g) Sellers shall deliver to Purchaser, and Purchaser shall deliver to Sellers, the Network Services Agreement substantially in the form attached as Exhibit C (the “Network Services Agreement”);
(h) Sellers shall deliver to Purchaser, and Purchaser shall deliver to Sellers, the Master Services Agreement substantially in the form attached as Exhibit D (the “Master Services Agreement”);
(i) Sellers shall deliver to Purchaser, and Purchaser shall deliver to Sellers, the Colocation Agreement substantially in the form attached as Exhibit E (the “Colocation Agreement”);
(j) Each Seller shall deliver to Purchaser a completed and executed IRS Form W-9 with respect to such Seller; and
(k) Sellers shall deliver to Purchaser, and Purchaser shall deliver to Sellers, such additional Transaction Agreements as contemplated by this Agreement.
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,
Documents to Be Delivered at Closing i. By the ISSUER
(1) Board of Directors Minutes authorizing the issuance of a certificate or certificates for 20,000,000 Shares, registered in the names of the SHAREHOLDERS equal to their pro-rata holdings in BID. All certificates shall be delivered promptly after Closing.
(2) The resignation of all officers of ISSUER.
(3) A Board of Directors resolution appointing such person as SHAREHOLDERS designate as a director(s)
Items to be Delivered at Closing 10.1 Items to be Delivered by the Sellers. At the Closing, the Sellers shall deliver to the Buyer the Assets, including by taking the following actions:
(a) Deliver to the Buyer an officer’s certificate on behalf of each Seller in a form reasonably satisfactory to the Buyer as to: (i) resolutions (or other instruments as applicable) embodying all corporate or limited liability company actions taken by and on behalf of such Seller, as appropriate, to authorize the execution, delivery and performance of this Agreement and the Other Agreements by such Seller; and (ii) the incumbency of each officer signing this Agreement, the Other Agreements or any other agreement, document or instrument executed in connection with this Agreement or the transactions contemplated by this Agreement on behalf of such Seller;
(b) Deliver to the Buyer a certificate of Seller Parent, dated as of the Closing Date and executed by an authorized representative of Seller Parent, to the effect that each of the conditions specified in Section 8.1 and Section 8.2 are satisfied in all respects;
(c) To the extent available under applicable Law, deliver to the Buyer a certificate of good standing of each Seller dated as of a date within thirty (30) days of the Closing Date and issued by the Secretary of State or other appropriate Governmental Authority of the state in which such Seller was incorporated or formed;
(d) Deliver to the Buyer those Orders, consents, approvals, results and clearances set forth on Schedule 8.3 and described in Section 8.3;
(e) Deliver to the Buyer one or more bills of sale, substantially in the form of Exhibit G hereto, conveying title to all of such Seller’s Personal Property included in the Assets;
(f) Deliver to the Buyer an assignment and assumption agreement in the form of Exhibit H hereto (the “Assignment and Assumption Agreement”), duly executed by the Sellers;
(g) Deliver to the Buyer the Escrow Agreement duly executed by Seller Parent;
(h) Deliver to the Buyer the Transition Services Agreement duly executed by Seller Parent;
(i) Deliver to the Buyer the Supply Agreement duly executed by Seller Parent;
(j) Deliver to the Buyer the Product Processing Agreement duly executed by Seller Parent;
(k) Deliver to the Buyer the Other Agreements duly executed by each appropriate Seller;
(l) Deliver to the Buyer the Preliminary Statement duly executed by Seller Parent;
(m) Deliver to the Buyer assignment documents for each of the patents, trademarks and other Intellectual Property which are part of the Assets, duly executed by each appropriate Seller;
(n) Deliver to the Buyer all such executed documents as may be required to change each FS Tech Entity’s name on that date to another name bearing no similarity to the current FS Tech Entity name as identified on Schedule 1, including but not limited to a name change amendment with the appropriate state or government office and an appropriate name change notice for each state or country where the FS Tech Entity is qualified to do business;
(o) Deliver to the Buyer any and all documents, instruments and certificates as the Buyer reasonably deems necessary to consummate the transactions contemplated by this Agreement as the Buyer reasonably requests (including documents evidencing the release of any guarantor obligations required pursuant to Section 8.7 of this Agreement and the release of Liens required pursuant to Section 8.8 of this Agreement); and
(p) Deliver to the Buyer such other good and sufficient instruments of transfer as the Buyer reasonably deems necessary and appropriate to vest in the Buyer all right, title and interest in, to and under the Assets; and simultaneously with such delivery, the Sellers shall take such steps as are required to put the Buyer in actual possession and operating control of the Assets.
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.
Documents Required to be Delivered on each Issuance Notice Date The Agent’s obligation to use its commercially reasonable efforts to place Shares hereunder shall additionally be conditioned upon the delivery to the Agent on or before the Issuance Notice Date of a certificate in form and substance reasonably satisfactory to the Agent, executed by the Chief Executive Officer, President or Chief Financial Officer of the Company, to the effect that all conditions to the delivery of such Issuance Notice shall have been satisfied as at the date of such certificate (which certificate shall not be required if the foregoing representations shall be set forth in the Issuance Notice).
Conditions to Purchasers’ Obligations at the Closing Purchasers’ obligation to purchase the Shares at the Closing are subject to the satisfaction, at or prior to the Closing Date, of the following conditions:
Documents to be Delivered by Seller At Closing At or prior to the Closing, Seller shall deliver or cause to be delivered to Purchaser the following, all in form and substance reasonably satisfactory to Purchaser:
a. Special Warranty Deed to Purchaser or Purchaser's nominee in recordable form, conveying good and marketable title in fee simple to the Property and Building, subject only to the Permitted Exceptions;
b. The Title Policy or a "marked-up" Title Commitment (including extended coverage and title endorsements) and indicating waiver or deletion of the Removable Exceptions;
c. A Xxxx of Sale executed by Seller, assigning, conveying and warranting to the Purchaser title to the Personal Property, if any, and the Intangible Property, if any, free and clear of all encumbrances;
d. The original executed Leases;
e. Letter from the tenants under the Leases (hereinafter referred to as "Tenant Estoppel Certificates") addressed to Purchaser or its nominee and Mortgagee, as hereinafter defined, in the form attached hereto as Exhibit "B". If Seller is unable to obtain Tenant Estoppel Certificates from all of the tenants, Seller shall provide Purchaser with a Seller's Estoppel Certificate for the tenants who did not provide Tenant Estoppel Certificates. The Seller's Estoppel Certificate shall contain the matters set forth in Exhibit "B" attached hereto;
f. Notices executed by Seller to all tenants, licensees or concessionaires, under the Leases and Project Contracts directing such parties to pay all rental and other payments to Purchaser or its agent;
g. All architectural drawings, plans, specifications, surveys, building permits, occupancy permits or other similar items in Seller's possession and control which Seller has created, used or relied upon for the ownership and maintenance of the Project;
h. A non-foreign certificate in accordance with the provisions of paragraph 22 hereof;
i. Insurance certificates in Seller's possession required by the tenants under the Lease;
j. A rent roll dated as of the Closing certified by Seller to Purchaser to be true, correct and complete;
k. All keys in possession of the Seller used in connection with the Project and the combinations to all locks included on the Project;
l. An affidavit of title;
m. A certificate from Seller stating that the representations and warranties set forth in paragraph 9 are true and accurate in an material respects as of the date of the Closing; and
n. Such other documents as Purchaser or the Title Company may reasonably request to enable Purchaser to consummate the Transaction contemplated by this Agreement.
Termination Prior to Closing Notwithstanding the foregoing, the parties will be relieved of the obligation to consummate the Closing and purchase or sell the Assets:
(a) By the mutual written consent of the Buyer and the Seller;
(b) By the Seller in writing, without liability, if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph;
(c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph;
(d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency;
(e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof;
(f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement;
(g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially own