Common use of Ancillary Agreements and Documents Clause in Contracts

Ancillary Agreements and Documents. Parent shall have received the following agreements and documents, each of which shall be in full force and effect: (a) a certificate, dated as of the Closing Date, signed on behalf of the Company, by the Chief Executive Officer and the Chief Financial Officer of the Company, in their capacity as officers of the Company and not in their personal capacity (without in any way limiting the rights of the Indemnified Parties relating thereto pursuant to Section 8) representing and warranting after reasonable investigation: (i) that the conditions set forth in Section 5.1 and Section 5.2 have been duly satisfied; and (ii) that each of the representations and warranties made by the Company in this Agreement (a) that are qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect,” or words of similar import or effect are true and correct in all respects as of the Agreement Date and as of the Closing, as if made on and as of that time, except for representations and warranties made as of a specific date, which are true and correct as of such date, and (b) that are not so qualified by materiality are true and correct in all material respects as of the Agreement Date and as of the Closing, as if made on and as of that time, except for representations and warranties made as of a specific date, which are true and correct in all material respects as of such date, except for each such representation and warranty listed in such certificate (the “Company Compliance Certificate”); (b) written resignations of the directors of the Company other than the director designated by AMCC, effective as of the Effective Time; (c) the Escrow Agreement, executed by the Stockholders’ Representative and the Escrow Agent; (d) a certificate, dated as of the Closing Date, signed on behalf of the Company by the Chief Executive Officer and the Chief Financial Officer of the Company, in their capacity as officers of the Company and not in their personal capacity (without in any way limiting the rights of the Indemnifies Parties relating thereto pursuant to Section 8) certifying, (i) the accuracy as of the Effective Time of the Closing Capitalization Certificate delivered pursuant to Section 4.8; (ii) the Transaction Expenses as of the Effective Time; and (iii) the Tax withholding information delivered pursuant to Section 1.11(f); and (e) a certificate of good standing of the Company in its jurisdiction of incorporation and in each other jurisdiction where it is qualified to do business.

Ancillary Agreements and Documents. Parent The Purchaser shall have received the following agreements and documents, each of which shall be in full force and effect: (a) a certificate, dated as of the an executed Estimated Working Capital Schedule and Estimated Closing DateCash Schedule, signed on behalf of the Company, by the Chief Executive Officer and the Chief Financial Officer of the Company, delivered in their capacity as officers of the Company and not in their personal capacity (without in any way limiting the rights of the Indemnified Parties relating thereto pursuant to accordance with Section 8) representing and warranting after reasonable investigation: (i) that the conditions set forth in Section 5.1 and Section 5.2 have been duly satisfied; and (ii) that each of the representations and warranties made by the Company in this Agreement (a) that are qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect,” or words of similar import or effect are true and correct in all respects as of the Agreement Date and as of the Closing, as if made on and as of that time, except for representations and warranties made as of a specific date, which are true and correct as of such date, and (b) that are not so qualified by materiality are true and correct in all material respects as of the Agreement Date and as of the Closing, as if made on and as of that time, except for representations and warranties made as of a specific date, which are true and correct in all material respects as of such date, except for each such representation and warranty listed in such certificate (the “Company Compliance Certificate”1.4(a); (b) an executed signature page of the Seller and the Escrow Agent to the Escrow Agreement; (c) certificates representing the Interests (if any exist), duly endorsed in blank or accompanied by duly executed assignment documents satisfactory in form and substance to the Purchaser; (d) the organizational record books, minute books and corporate seal of each Company Party; (e) evidence reasonably satisfactory to the Purchaser that all Encumbrances (other than Permitted Encumbrances) affecting any of the assets of any Company Party listed in Part 5.5(e) of the Disclosure Schedule have been released; (f) a certificate of good standing (or equivalent document under such jurisdiction's applicable Laws) from the Secretary of State of Delaware (or the applicable Mexican Governmental Body) for the Company, the Seller and the Parent and each other jurisdiction in which the Company is qualified to do business, as well as an entity status letter from the State of California Franchise Tax Board reflecting that the Company is in good standing with the Franchise Tax Board (collectively, the “Good Standing Certificates”), each dated as of a date not more than five days prior to the Closing Date; (g) employment and/or noncompetition agreements among Purchaser, the Company and each of Exxx Xxxxx, and Lxxxx Xxxxxxxxx, in form and substance satisfactory to Purchaser; (h) transfer documentation surrounding the transfer of the Other NABCO Mexico Interests by Lxxxx Xxxxxxxxx to the Canadian Purchaser; (i) nonsolicitation/nondisclosure agreements between the Purchaser and each of Cxxxx Xxxxxxxx and Kxxx Xxxx; (j) the Check-The-Box Election, in form and substance satisfactory to Purchaser and its counsel; (k) a Bxxx of Sale by the Company in favor of the Canadian Purchaser, and an Assignment and Assumption Agreement between the Company and the Canadian Purchaser; (l) estoppel certificates, landlord waivers, collateral access agreements and non-disturbance agreements relating to the Leases or any warehousing Contracts as are reasonably requested by Purchaser and its lenders; (m) written resignations of the directors officers of the Company other than the director designated by AMCCCompany, effective as of the Effective TimeClosing or as otherwise requested by Purchaser; (c) the Escrow Agreement, executed by the Stockholders’ Representative and the Escrow Agent; (dn) a certificate, dated as of the Closing Date, signed on behalf by the Secretary (or other equivalent position) of the Company by the Chief Executive Officer and the Chief Financial Officer of the Company, in their capacity as officers of the Company and not in their personal capacity (without in any way limiting the rights of the Indemnifies Parties relating thereto pursuant to Section 8) certifying, (i) the accuracy as attaching copies of the Effective Time each Company Party's certificate of the Closing Capitalization Certificate delivered pursuant to Section 4.8; formation, articles of incorporation or other equivalent document, and Operating Agreement, and any amendments thereto, of such Company Party, (ii) certifying that attached thereto are true and correct copies of action by written consent or resolutions duly adopted by the Transaction Expenses Board of Directors (or other equivalent body) of such Company Party, as well as any equity owner consent or resolution required, which authorize and approve the execution, delivery and performance of this Agreement and the consummation of the Effective Time; and transactions contemplated thereby, (iii) certifying the Tax withholding information delivered pursuant to Section 1.11(f); and (e) a certificate of good standing of the such Company Party in its jurisdiction of incorporation formation and in each other jurisdiction where in which it is qualified to do business, and that there are no proceedings for the dissolution or liquidation of such Company Party (iv) certifying the incumbency, signature and authority of the officers of such Company Party authorized to execute, deliver and perform this Agreement and all other documents, instruments or agreements related thereto executed or to be executed by such Company Party; (o) a certificate, executed by Parent and/or Seller, prepared in accordance with Treasury Regulation 1.1445-2(b)(2) and in the form and substance satisfactory to Purchaser, that Parent and Seller are not foreign persons; (p) evidence that the name of the California corporation "NABCO, Inc." will be changed to a different name not including the word "NABCO" promptly following the Closing; and (q) all other documents required to be entered into by the Company, the Seller or the Parent pursuant hereto or reasonably requested by the Purchaser to convey the Interests to the Purchaser or to otherwise consummate the transactions contemplated hereby, including the documents listed in Section 7.2.

Ancillary Agreements and Documents. Parent The Purchaser shall have received the following agreements and documents, each of which shall be in full force and effect: (a) a certificate, dated as of the Closing Date, signed on behalf of the Company, certificate executed by the Chief Executive Officer Shareholders and the Chief Financial Officer of the Company, in their capacity as officers chief executive officer or chief financial officer of the Company and not in their personal capacity (without in any way limiting the rights of the Indemnified Parties relating thereto pursuant as to Section 8) representing and warranting after reasonable investigation: (i) that compliance with the conditions set forth in Section Sections 5.1 and Section 5.2 have been duly satisfied; and (ii) that each of the representations and warranties made by the Company in this Agreement (a) that are qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect,” or words of similar import or effect are true and correct in all respects as of the Agreement Date and as of the Closing, as if made on and as of that time, except for representations and warranties made as of a specific date, which are true and correct as of such date, and (b) that are not so qualified by materiality are true and correct in all material respects as of the Agreement Date and as of the Closing, as if made on and as of that time, except for representations and warranties made as of a specific date, which are true and correct in all material respects as of such date, except for each such representation and warranty listed in such certificate (the “Company Shareholder Compliance Certificate”); (b) an executed Estimated Working Capital Schedule, signed and delivered in accordance with Section 1.4(a); (c) certificates representing the Shares, duly endorsed in blank or accompanied by duly executed stock powers or other assignment documents satisfactory in form and substance to the Purchaser; (d) the organizational record books, minute books and corporate seal of the Company; (e) evidence reasonably satisfactory to the Purchaser that all Encumbrances (other than Permitted Encumbrances) affecting any of the assets of the Company have been released, or will be released upon repayment of the Closing Date Indebtedness pursuant hereto; (f) (i) a certificate of good standing from the Secretary of State of California, (ii) a certificate of good standing (or the equivalent) of foreign corporation from the Secretary of State of Florida, Illinois, New Jersey and Texas; and (iii) a certificate of non-foreign status that complies with Treasury Regulation Section 1.4445-2(c)(3), each as of a reasonably recent date (collectively, the “Good Standing and Non-Foreign Status Certificates”); (g) a non-competition agreement substantially in the form attached hereto as Exhibit 5.5(g) for each Shareholder (the “Non-Competition Agreement”); (h) written resignations of the officers and directors of the Company other than the director designated by AMCCCompany, effective as of the Effective TimeClosing Date; (ci) a consulting agreement substantially in the Escrow Agreement, executed by the Stockholders’ Representative and the Escrow Agentform attached hereto as Exhibit 5.5(i) for each Shareholder; (dj) a legal opinion, dated the Closing Date, of Xxxxx & Xxxx LLP, containing the opinions set forth in Exhibit 5.5(j); (k) a Standstill agreement in the form attached hereto as Exhibit 5.5(k) for both Shareholders (the “Standstill Agreement”); (l) a certificate, dated as of the Closing Date, signed on behalf by the Secretary of the Company by (i) attaching copies of the Chief Executive Officer Certificate of Incorporation and the Chief Financial Officer Bylaws, and any amendments thereto, of the Company, in their capacity as officers (ii) attaching a true, correct and complete copy of the stock ledger of the Company and not in their personal capacity (without in any way limiting from the rights date of the Indemnifies Parties relating thereto pursuant to Section 8) certifying, (i) the accuracy as of the Effective Time of its incorporation through the Closing Capitalization Certificate delivered pursuant to Section 4.8; (ii) the Transaction Expenses as of the Effective Time; and Date, (iii) certifying that attached thereto are true and correct copies of action by written consent or resolutions duly adopted by the Tax withholding information delivered pursuant to Section 1.11(f); and Board of Directors of the Company which authorize and approve the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated thereby, (eiv) a certificate of certifying the good standing of the Company in its jurisdiction of incorporation and in each other jurisdiction where in which it is qualified to do business., and that there are no proceedings for the dissolution or liquidation of the Company (v) certifying the incumbency, signature and authority of the officers of the Company authorized to execute, deliver and perform this Agreement and all other documents, instruments or agreements related thereto executed or to be executed by the Company; and (m) an Escrow Agreement in the form attached hereto as Exhibit 1.2(e); and

Ancillary Agreements and Documents. Parent shall have received the following agreements and documents, each of which shall be in full force and effect: (a) a certificate, dated as of the Closing Date, signed on behalf of the Company, certificate executed by the Chief Executive Officer and the Chief Financial Officer of the Company, in their capacity as officers of the Company and not in their personal capacity (without in any way limiting the rights of the Indemnified Parties relating thereto pursuant to Section 8) representing and warranting after reasonable investigation: (i) that the conditions set forth in Section 5.1 Sections 6.1, 6.2, 6.3 and Section 5.2 6.6 have been duly satisfied; and (ii) that each of the representations and warranties made by the Company in this Agreement (a) that are qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect,” or words of similar import or effect are true and correct in all respects as of the Agreement Date and as of the Closing, as if made on and as of that time, except for representations and warranties made as of a specific date, which are true and correct as of such date, and (b) that are not so qualified by materiality are true and correct in all material respects as of the Agreement Date and as of the Closing, as if made on and as of that time, except for representations and warranties made as of a specific date, which are true and correct in all material respects as of such date, except for each such representation and warranty listed in such certificate satisfied (the “Company Compliance Certificate”); (b) written resignations of the directors and officers of the Company other than the director designated by AMCCCompany, effective as of the Effective TimeClosing; (c) the Escrow Agreement, executed by the StockholdersShareholders’ Representative and the Escrow Agent; (d) a legal opinion, dated the Closing Date, of XxXxxxx Xxxxxxxxx LLP, reasonably satisfactory in form and substance to Parent and containing the opinions set forth in EXHIBIT J hereto; (e) a legal opinion, dated the Closing Date, of Xxxxxx Xxxxxxxx LLP, reasonably satisfactory in form and substance to Parent and containing the opinions set forth in EXHIBIT K hereto; (f) a certificate in such form as may be reasonably requested by counsel to Parent that complies with Treasury Regulation Section 1.1445-2(c)(3); (g) a certificate signed by the Chief Executive Officer of the Company certifying (i) the Fully Diluted Company Share Amount and containing the information required pursuant to Section 5.9, (ii) the Adjusted Total Consideration, (iii) the Per Share Closing Cash Amount, (iv) the Per Share Escrow Cash Amount, (v) the Per Share Closing Stock Amount, (vi) the Per Share Escrow Stock Amount, (vii) the Per Share Founder Closing Cash Amount, (viii) the Per Share Founder Escrow Cash Amount, (ix) the Per Share Founder Closing Stock Amount, and (x) the Per Share Founder Escrow Stock Amount; (h) an estoppel certificate, dated as of a date not more than five (5) days prior to the Closing Date and reasonably satisfactory in form and content to Parent, executed by each landlord from whom the Company leases premises; (i) written evidence, reasonably satisfactory to Parent, that the Company shall have complied with the covenants and agreements set forth in Section 5.10; (j) a certificate, dated as of the Closing Date, signed on behalf of the Company by the Chief Executive Officer of the Company (i) attaching copies of the Organizational Documents, and the Chief Financial Officer any amendments thereto, of the Company, in their capacity as officers (ii) attaching a true, correct and complete copy of the central securities register of the Company and not in their personal capacity (without in any way limiting from the rights date of the Indemnifies Parties relating thereto pursuant to Section 8) certifying, (i) the accuracy as of the Effective Time of its incorporation through the Closing Capitalization Certificate delivered pursuant to Section 4.8; (ii) the Transaction Expenses as of the Effective Time; and Date, (iii) certifying that attached thereto are true, correct and complete copies of actions by written consent or resolutions duly adopted by the Tax withholding information delivered pursuant to Section 1.11(f); and board of directors of the Company which authorize and approve the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement, (eiv) a certificate of certifying the good standing (or equivalent status in the relevant jurisdiction) of the Company in its jurisdiction of incorporation and in each other jurisdiction where it is qualified to do businessbusiness (or equivalent status in the relevant jurisdiction) and that there are no proceedings for the dissolution or liquidation of the Company, and (v) certifying the incumbency, signature and authority of the officers of the Company authorized to execute, deliver and perform this Agreement and all other documents, instruments or agreements related thereto executed or to be executed by the Company; (k) (i) a true, correct and complete copy of resolutions adopted by the board of directors of the Company authorizing the termination of each of the Company Rights in order to give effect to the transactions contemplated by this Agreement, and (ii) evidence satisfactory to Parent to ensure that no holder of Company Rights has any right to acquire Company Common Shares and that all liabilities of the Company under the Company Rights are fully extinguished at no cost, and with no liability, to the Company; (l) true and complete copies, certified by the Chief Executive Officer of the Company, of the Company Financial Statements; (m) evidence satisfactory to Parent that this Agreement or an Accession Agreement has been executed by each of the holders of Company Common Shares and Company Rights outstanding as of immediately prior to the Closing; (n) Voting Agreements in the form of EXHIBIT E hereto, executed by each of the Founders and Key Contractors; (o) lock-up agreements in the form of EXHIBIT L hereto, executed by the individuals set forth on SCHEDULE 6.7(O); (p) an acknowledgment and agreement executed by National Research Council Canada as represented by its Industrial Research Assistance Program, in form and substance reasonably satisfactory to Parent; (q) a certificate executed by the Shareholders’ Representative representing and warranting that the conditions set forth in Sections 6.1 and 6.2 (in each case with respect to the Shareholders) (the “Shareholders’ Compliance Certificate”); (r) an acknowledgement and agreement executed by Southern Interior Development Initiative Trust, in form and substance reasonably satisfactory to Parent; (s) evidence, in form and substance reasonably satisfactory to Parent, that the Company has obtained a Sales and Use Tax Resale Certificate from the Company’s customers in Texas, Massachusetts and Illinois and paid all sales and use tax obligations of the Company to such jurisdictions in full; (t) evidence satisfactory to Parent that the Shareholders’ Agreement has been terminated effective as of the Closing Date without any further obligation of the Company, Purchaser or Parent; (u) duly executed share transfers in respect of all of the Company Common Shares together with the relevant share certificate in respect thereof (or, in the case of any lost certificates, an indemnity, in form satisfactory to Parent, and, if requested by Parent, delivery of a bond in such sum as Parent may reasonably direct); and (v) all other documents required to be entered into by the Company pursuant hereto or reasonably requested by Parent to consummate the transactions contemplated by this Agreement.

Ancillary Agreements and Documents. Parent shall have received the following agreements and documentsdocuments from the Company, the Company Stockholders or the Stockholders’ Representative, as applicable, each of which shall be in full force and effect: (a) a certificate, dated as of the Closing Date, signed on behalf of the Company, certificate duly executed by the Chief Executive Officer and the Chief Financial Officer of the Company, in their capacity as officers of the Company and not in their personal capacity (without in any way limiting the rights as to compliance as of the Indemnified Parties relating thereto pursuant to Section 8) representing and warranting after reasonable investigation: (i) that Closing Date with the conditions set forth in Section 5.1 Sections 7.1 and Section 5.2 have been duly satisfied; and (ii) that each of the representations and warranties made by the Company in this Agreement (a) that are qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect,” or words of similar import or effect are true and correct in all respects as of the Agreement Date and as of the Closing, as if made on and as of that time, except for representations and warranties made as of a specific date, which are true and correct as of such date, and (b) that are not so qualified by materiality are true and correct in all material respects as of the Agreement Date and as of the Closing, as if made on and as of that time, except for representations and warranties made as of a specific date, which are true and correct in all material respects as of such date, except for each such representation and warranty listed in such certificate 7.2 hereof (the “Company Compliance Certificate”); (b) written resignations of the directors of the Company other than the director designated by AMCCCompany, effective as of the Effective Time, reasonably satisfactory in form and substance to Parent; (c) the Employment Agreement, duly executed by the Key Employee; (d) the Stockholder Certificates, duly executed by each recipient of Closing Merger Shares; (e) a legal opinion, dated as of the Closing Date, of Wxxxxx Xxxxxxx Xxxxxxxx & Rxxxxx, P.C., reasonably satisfactory in form and substance to Parent; (f) the Escrow Agreement, duly executed by the Stockholders’ Representative and the Escrow AgentRepresentative; (dg) the Final Indebtedness Certificate, duly executed by the Company’s Chief Financial Officer; (h) the Final Expenses Certificate, duly executed by the Company’s Chief Financial Officer; (i) a certificate, dated as of the Closing Date, signed on behalf of the Company duly executed by the Chief Executive Officer and the Chief Financial Officer of the Company, certifying as to all outstanding accounts payable of the Company as of the Closing Date; (j) a duly executed copy of the FIRPTA Compliance Certificate; (k) the Closing Merger Consideration Spreadsheet accompanying by a certificate duly executed by the Stockholders’ Representative certifying all information set forth in the Closing Merger Consideration Spreadsheet; (l) a long-form Certificate of Good Standing from the Secretary of State of the State of Delaware which is dated within two (2) Business Days prior to Closing with respect to the Company; (m) a Certificate of Good Standing from the Secretary of State of the State of California and the Franchise Tax Board and a Certificate of Good Standing from the applicable Governmental Entity in each jurisdiction where it is required to be qualified to do business, all of which are dated within two (2) Business Days prior to the Closing; (n) a certificate, dated as of the Closing Date, duly executed by the Secretary of the Company, (i) attaching copies of the Certificate of Incorporation, as amended and restated, and the Bylaws, and any amendments thereto and certifying as to their capacity as effectiveness, (ii) certifying that attached thereto are true and correct copies of any actions by written consent or resolutions duly adopted by the Board of Directors of the Company which authorize and approve the execution, delivery and performance of this Agreement and the Company Related Agreements and the consummation of the transactions contemplated hereby and thereby, including the Merger, (iii) certifying that the Company Stockholder Approval shall have been obtained, and (iv) certifying the incumbency, signature and authority of the officers of the Company authorized to execute, deliver and not perform this Agreement, the Company Related Agreements and all other documents, instruments, certificates or agreements related thereto executed or to be executed by the Company; (o) evidence, including final pay-off letters, satisfactory to Parent that the Company has paid or discharged all Indebtedness reflected in their personal capacity the Final Indebtedness Certificate; (without p) duly executed copies of all agreements, instruments, certificates and other documents, in any way limiting form and substance reasonably satisfactory to Parent, that are necessary or appropriate to evidence the rights release of the Indemnifies Parties relating thereto pursuant to Section 8) certifying, (iall Encumbrances set forth in Schedule 7.13(o) the accuracy as of the Effective Time of the Closing Capitalization Certificate delivered pursuant to Section 4.8; (ii) the Transaction Expenses as of the Effective Time; and (iii) the Tax withholding information delivered pursuant to Section 1.11(f)hereto; and (eq) a certificate evidence satisfactory to Parent that the Company Stock Option Plan and the 401(k) Plan have been terminated pursuant to resolution of good standing the Board of Directors of the Company in its jurisdiction or the ERISA Affiliate, as the case may be (the form and substance of incorporation which shall have been subject to the reasonable review and in each other jurisdiction where it is qualified to do businessapproval of Parent), for purposes of the 401(k) Plan, effective as of no later than the day immediately preceding the Closing Date.