Buyer Closing Conditions. The obligation of Buyer to acquire Shares at the Closing is subject to the satisfaction of each of the following conditions, unless explicitly waived by Xxxxx in writing: (a) The representations and warranties of Shareholder contained in this Agreement shall have been true and correct in all material respects on and as of the date hereof and shall be true and correct in all material respects as of the Closing, except (i) those representations and warranties that address matters only as of a particular date need only be true and correct as of such date, and (ii) in each case for any representations or warranties that are qualified by “materiality” or “Material Adverse Effect” or any similar qualifier, which representations and warranties shall have been and be true and correct in all respects; (b) The Selling Parties shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by the Selling Parties prior to or on the Closing Date; (c) The Selling Parties shall have delivered or caused to be delivered to Buyer: (i) original certificates evidencing all of the Shares duly endorsed for transfer or accompanied by notarized powers, with all transfer stamps attached, if required, each duly executed by Shareholder, and such other instruments as may be requested by Buyer to vest full legal and beneficial ownership of the Shares in Buyer, free and clear of any Liens; (ii) a certificate dated as of the Closing Date and signed by a duly authorized officer of Company, that each of the conditions set forth in Section 2.3(a) and Section 2.3(b) have been satisfied; (iii) a certificate from the Secretary or comparable official of Company, dated as of the Closing Date, attesting to the resolutions of such entity authorizing the execution, delivery and performance of the Transaction Agreements to be executed, performed and delivered by Company, and to the incumbency of the Person(s) executing any Transaction Agreement on behalf of such entity; (iv) copies of the Organizational Documents of Company, each as in effect on the Closing Date and certified by the appropriate Governmental Authority or, with respect to any Organizational Documents that are not publicly filed, the Secretary or comparable official of Company; (v) a certificate of valid existence as to Company from the Secretary of State (or its equivalent) in its jurisdiction of organization and each state where Company is qualified to do business as a foreign entity, in each case dated not earlier than the fifth Business Day prior to the Closing; (vi) evidence reasonably satisfactory to Buyer and its counsel that all mortgages, security interests, collateral assignments and other Liens (other than Permitted Liens) on any of the assets of Company have been released, discharged and terminated in full, and the relevant assets or other assigned collateral have been returned to the relevant party; (vii) as requested by Xxxxx, written resignations, effective as of the Effective Time, by all Persons who are directors or officers of Company; (viii) a counterpart of the Escrow Agreement, duly executed by Company; (ix) a counterpart of an employment agreement between Xxxxx and Shareholder, substantially in the form attached hereto as Exhibit C (the “Shareholder Employment Agreement”), duly executed by Shareholder; (x) a counterpart of (i) a retention agreement between Company and each Key Employee, substantially in the form attached hereto as Exhibit D (collectively, the “Retention Agreements”), duly executed by each Key Employee, it being acknowledged that each Key Employee who executes a Retention Agreement shall be eligible to receive the bonus opposite his or her name on the schedule set forth on Exhibit E (the “Retention Bonus Schedule”) pursuant to the terms and conditions of such Retention Agreement; (xi) a signed and executed Section 338 Election Form, under the procedures described in Section 8.2(b), shall have been received and delivered to Buyer; (xii) duly completed and executed IRS Form W-9, Request for Taxpayer Identification Number and Certification, of Shareholder, or other certification of Shareholder reasonably acceptable to Buyer and otherwise meeting the applicable requirements of Treasury Regulation sections 1.1445-2(b)(2), in each case dated as of the Closing Date; and (xiii) all other documents, certificates, agreements or instruments required to be delivered to Buyer at the Closing by any Selling Party pursuant to any other provision hereof, duly executed by the relevant Person(s). (d) Since the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event have occurred that, individually or in the aggregate, with or without the lapse of time, would reasonably be expected to result in a Material Adverse Effect; (e) No Proceeding shall have been commenced and be pending against any party to this Agreement which seeks to prevent the Closing. No Order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby; (f) All approvals, consents and waivers that are listed on Schedule 2.3(f) shall have been received and delivered to Buyer, and shall remain in full force and effect; and (g) The closing of the transactions contemplated by that certain Real Estate Purchase and Sale Agreement, dated October 3, 2022, by and between Related Party Landlord and Buyer (or its designee) (the “REPSA”), including the sale of the real estate and improvements located at 0000 Xxxxx Xxxxxx Xxxx, Spokane, Washington (collectively, the “Spokane Real Property”), shall have been consummated, it being the intent of the parties hereto for such transactions to occur concurrently with the transactions contemplated by this Agreement.
Appears in 1 contract
Buyer Closing Conditions. The obligation of Buyer Seller to acquire Shares at consummate the Closing transactions contemplated by this Agreement is subject to the satisfaction of each of the following conditions, unless explicitly waived by Xxxxx in writingconditions on or prior to the Closing Date:
(a) The Buyer shall have delivered to Seller the following closing deliverables, in form and substance satisfactory to Seller:
(i) a fully executed Xxxx of Sale duly executed by Buyer;
(ii) a certificate or certificates representing 12 million (12,000,000) restricted shares of the $0.00001 par value common stock of Buyer; provided that the total number of shares of Buyer’s $0.00001 par value common stock issued and outstanding following the Closing shall not exceed 20 million (20,000,000) shares (on a fully diluted basis), except that those shares issued upon conversion of the promissory notes referenced in subsections (f) below, and the Permitted Notes referenced in subsection (j) below may be issued in excess of the 20 million shares (on a fully diluted basis);
(iv) evidence, reasonably satisfactory to Seller, of the payment and release of all debt of Buyer other than as allowed under subsection (j), below;
(v) a Certificate of Status of Buyer, issued by the Secretary of State of the State of Delaware, dated not more than fifteen (15) days prior to the Closing Date and showing Buyer to be active and in good standing in the State of Delaware;
(vi) a fully executed certificate of the Secretary (or equivalent officer) of Buyer certifying as to (a) the resolutions of the board of directors of Buyer, being duly adopted and in effect as of the Closing Date, which authorize the execution, delivery and performance of this Agreement and the transactions contemplated hereby, (b) the representations and warranties of Shareholder contained in this Agreement shall have been Article IV hereof being true and correct in all material respects on at and as of the date hereof Closing as though then made and shall be true as though the Closing Date was substituted for the Effective Date throughout such representations and correct warranties, and (c) Buyer having performed in all material respects all of the covenants and agreements required to be performed by it hereunder prior to the Closing;
(vii) such other customary instruments of transfer, assumption, filings or documents, in form and substance reasonably satisfactory to Seller, as may be required to give effect to this Agreement; and
(viii) a certificate of Buyer’s President certifying that to his knowledge after reasonable investigation there has been no activity, action or inaction that would result in a “tolling” of the California statute of limitations with respect to the Aged Liabilities as defined below in subsection (j).
(b) Buyer shall have filed with the SEC all reports required to be filed by it under the Exchange Act as of the ClosingClosing Date and shall have used its best efforts to maintain the quotation for its common stock on the OTC Pink-tier of OTC Markets.
(c) All outstanding options, except warrants and convertible securities of Buyer shall have been exercised, converted or cancelled and Buyer shall have no derivative securities outstanding which are convertible into its common stock other than (i) those representations the stock option issued to Xxx Xxxxxxxx and warranties Xxxxxx Xxxxxxxx under that address matters only as of a particular date need only be true and correct as of such datecertain Patent Purchase Agreement dated May 6, 2019, and (ii) as set forth in each case subsection (j) below.
(d) Buyer shall have effected a reverse stock split so that immediately prior to the Closing there shall be approximately eight million (8,000,000) shares of Buyer’s common stock outstanding and immediately after the Closing there shall be approximately 20 million (20,000,000) such shares outstanding, including the 12 million (12,000,000) shares to be issued to Seller pursuant hereto.
(e) Buyer shall have adopted an “Omnibus Stock Plan” (“Plan”) that provides for any representations the issuance of qualified stock options, non-qualified stock options, restricted stock awards, and phantom stock awards with 4 million (4,000,000) shares of Buyer’s $0.00001 par value common stock (post-split) reserved and approved for issuance under the Plan.
(f) Buyer acknowledges that Xxxx Xxxxxx, First Capital Holdings, LLC, First Capital Ventures, LLC, Xxxx Xxxxxx, and Seller have paid and will pay expenses, commit personnel, and loan or warranties that advance cash to Buyer to: (i) assist with ongoing operating expenses, (ii) pay for further engineering and development work on Buyer’s products and prototypes, (iii) protect, maintain, and develop the Buyer’s products and intellectual property, (iv) hire, pay and retain the proposed management team, third party consultants, and advisors for the Buyer following the consummation of the sale contemplated in this Agreement, and (v) take such further actions as are qualified by necessary to more quickly expand the Buyer’s business subsequent to the sale of the Purchased Assets (collectively the “materiality” Development Expenditures”). At the Closing, Buyer shall deliver a promissory note or “Material Adverse Effect” notes to Seller or any similar qualifierto third parties at Seller’s direction for the aggregate of all funds incurred, which representations paid, or advanced for the Development Expenditures in the same form as Exhibit D hereto.(g) Evidence showing Messrs. Xxxx Xxxxxxx, Xxxxxxxx Xxxxxx and warranties Xxxxxx Xxxxxxxx previously submitted their resignations from the board of directors of Buyer, and Buyer shall have taken all such actions as are necessary to cause Xxxxx Xxxxx, Xxxxx Xxxxxxxxx, and Xxxx Xxxxxx, to be elected directors of Buyer as of the Closing Date, to serve with Xx. Xxxxxxx Xxxxxxxxxx, who is remaining on Buyer’s board of directors.
(h) Xx. Xxxxxxx Xxxxxxxxxx and Xx. Xxxx Xxxxxx shall have submitted his/their resignations as officer of Buyer, effective as of the Closing Date, and Xxxxx Xxxxx shall have been appointed as the President and be true Chief Executive Officer, and correct in all respects;Xxx Xxxxxx as the Secretary, Treasurer and Chief Financial Officer of Buyer effective as of the Closing Date.
(bi) The Selling Parties No shares of preferred stock of Buyer shall be issued and outstanding as of the Closing Date and there shall be no outstanding options, warrants or rights that, upon exercise or conversion, would result in the issuance of preferred stock of Buyer.
(j) Buyer shall have duly no outstanding debt or other liabilities at closing, except for (i) normally occurring business expenses which that have not been paid and that shall not exceed $25,000 as of the Closing Date; (ii) outstanding notes issued pursuant to subsection (f) above, (iii) up to a maximum of $125,000 of promissory note(s) (the “Permitted Notes”); and (iv) the aged liabilities listed on Schedule 2.03(j) that are more than four (4) years old (the “Aged Liabilities”). The Permitted Notes shall (i) bear interest at the rate of 5% per annum, (ii) mature two years after the Closing Date, (iii) be convertible into common stock of Buyer at $2.00 per share, (iv) provide that no payments of principal or interest shall be due until maturity, and (v) automatically convert into common stock of Buyer at $2.00 per share if the average closing price of Buyer’s common stock in its principal trading market equals or exceeds $3.00 per share for five (5) consecutive trading days at any time prior to maturity.
(k) Buyer shall have performed and complied in all material respects with all agreements, covenants obligations and conditions contained in this Agreement, or imposed upon Buyer by law, that are required by this Agreement to be performed or complied with by the Selling Parties prior to Buyer on or on the Closing Date;
(c) The Selling Parties shall have delivered or caused to be delivered to Buyer:
(i) original certificates evidencing all of the Shares duly endorsed for transfer or accompanied by notarized powers, with all transfer stamps attached, if required, each duly executed by Shareholder, and such other instruments as may be requested by Buyer to vest full legal and beneficial ownership of the Shares in Buyer, free and clear of any Liens;
(ii) a certificate dated as of the Closing Date and signed by a duly authorized officer of Company, that each of the conditions set forth in Section 2.3(a) and Section 2.3(b) have been satisfied;
(iii) a certificate from the Secretary or comparable official of Company, dated as of the Closing Date, attesting to the resolutions of such entity authorizing the execution, delivery and performance of the Transaction Agreements to be executed, performed and delivered by Company, and to the incumbency of the Person(s) executing any Transaction Agreement on behalf of such entity;
(iv) copies of the Organizational Documents of Company, each as in effect on the Closing Date and certified by the appropriate Governmental Authority or, with respect to any Organizational Documents that are not publicly filed, the Secretary or comparable official of Company;
(v) a certificate of valid existence as to Company from the Secretary of State (or its equivalent) in its jurisdiction of organization and each state where Company is qualified to do business as a foreign entity, in each case dated not earlier than the fifth Business Day prior to before the Closing;
(vil) evidence Seller shall have completed its due diligence investigation of Buyer to its satisfaction, in its sole and absolute discretion.
(m) No Proceeding shall be pending or threatened before any Governmental Entity wherein an unfavorable injunction, judgment, order, decree, ruling or charge could reasonably satisfactory be expected to Buyer and its counsel that all mortgages, security interests, collateral assignments and other Liens (other than Permitted Liens) on prevent the performance of this Agreement or the consummation of any of the assets transactions contemplated hereby or declare unlawful any of Company the transactions contemplated hereby, and no such injunction, judgment, order, decree or ruling shall have been released, discharged and terminated entered or be in full, and the relevant assets effect; and
(n) No Law or other assigned collateral order shall have been returned to enacted or entered into after the relevant party;Effective Date that would prevent the consummation of the transactions contemplated hereby.
(viio) as requested by Xxxxx, written resignations, effective as of the Effective Time, by all Persons who are directors or officers of Company;
(viii) a counterpart of the Escrow Agreement, duly executed by Company;
(ix) a counterpart of Buyer shall have entered into an employment agreement between with Xxxxx Xxxxx to serve as the Chief Executive Officer and ShareholderPresident and an employment agreement with Xxx Xxxxxx to serve as the Chief Financial Officer, Secretary and Treasurer of Buyer, substantially in the form attached hereto as Exhibit C E , that shall become effective at the Closing. The employment agreements shall include the grant of incentive stock options to each of Messrs. Xxxxx and Xxxxxx under the Plan at the trading price of Buyer’s common stock at the effective time of the employment agreements.
(p) A letter from Buyer’s counsel reasonably satisfactory to Seller regarding the “Shareholder Employment Agreement”)status of the Aged Liabilities under California law, and Buyer’s ability to avoid paying the Aged Liabilities by raising the Statute of Limitations as a defense to any action brought for collection. Any condition specified in this Section 2.03 may be waived by Seller, or the time for the performance thereof may be extended by Seller, if such waiver is set forth in a writing duly executed by Shareholder;
(x) Seller; provided, however, that the failure of Seller to assert any of its rights shall not be deemed a counterpart waiver of (i) any rights, and a retention agreement between Company and each Key Employee, substantially in the form attached hereto waiver or extension as Exhibit D (collectively, the “Retention Agreements”), duly executed by each Key Employee, it being acknowledged that each Key Employee who executes a Retention Agreement shall be eligible to receive the bonus opposite his or her name on the schedule set forth on Exhibit E (the “Retention Bonus Schedule”) pursuant to the terms and conditions of such Retention Agreement;
(xi) a signed and executed Section 338 Election Form, under the procedures described in Section 8.2(b), shall have been received and delivered to Buyer;
(xii) duly completed and executed IRS Form W-9, Request for Taxpayer Identification Number and Certification, of Shareholder, or other certification of Shareholder reasonably acceptable to Buyer and otherwise meeting the applicable requirements of Treasury Regulation sections 1.1445-2(b)(2), in each case dated as of the Closing Date; and
(xiii) all other documents, certificates, agreements or instruments required to be delivered to Buyer at the Closing by any Selling Party pursuant to any other provision hereof, duly executed by the relevant Person(s).
(d) Since the date of this Agreement, there particular condition shall not have occurred be deemed a waiver or extension of any Material Adverse Effect, nor shall any event have occurred that, individually or in the aggregate, with or without the lapse of time, would reasonably be expected to result in a Material Adverse Effect;
(e) No Proceeding shall have been commenced and be pending against any party to this Agreement which seeks to prevent the Closing. No Order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby;
(f) All approvals, consents and waivers that are listed on Schedule 2.3(f) shall have been received and delivered to Buyer, and shall remain in full force and effect; and
(g) The closing of the transactions contemplated by that certain Real Estate Purchase and Sale Agreement, dated October 3, 2022, by and between Related Party Landlord and Buyer (or its designee) (the “REPSA”), including the sale of the real estate and improvements located at 0000 Xxxxx Xxxxxx Xxxx, Spokane, Washington (collectively, the “Spokane Real Property”), shall have been consummated, it being the intent of the parties hereto for such transactions to occur concurrently with the transactions contemplated by this Agreementother condition.
Appears in 1 contract
Buyer Closing Conditions. The (a) Buyer’s obligation of Buyer to acquire purchase the Shares at and to close the Closing Transaction is subject to the satisfaction of each of the following conditions, unless explicitly waived by Xxxxx in writingconditions (the “Buyer Closing Conditions”) at or prior to Closing:
(a1) The Seller’s representations and warranties of Shareholder contained in this Agreement shall have been Article 4, as qualified or limited by any exceptions in the Schedules to Article 4, are true and correct in all material respects on the Closing Date as if made at and as of the date hereof and shall be true and correct in all material respects as of the Closing, except Closing (i) those other than representations and warranties that address matters only as of a particular date need only be certain date, which were true and correct as of such that date, and (ii) in each case for any representations or warranties that are qualified by “materiality” or “Material Adverse Effect” or any similar qualifier, which representations and warranties shall have been and be true and correct in all respects);
(b2) The Selling Parties shall have duly performed Seller has executed and delivered all of the documents and instruments that he is required to execute and deliver or enter into prior to or at Closing, and has performed, complied with or satisfied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by the Selling Parties prior to or on the Closing Date;
(c) The Selling Parties shall have delivered or caused to be delivered to Buyer:
(i) original certificates evidencing all of the Shares duly endorsed for transfer other obligations, agreements and conditions under this Agreement that he is required to perform, comply with or accompanied by notarized powers, with all transfer stamps attached, if required, each duly executed by Shareholder, and such other instruments as may be requested by Buyer to vest full legal and beneficial ownership of the Shares in Buyer, free and clear of any Liens;
(ii) a certificate dated as of the Closing Date and signed by a duly authorized officer of Company, that each of the conditions set forth in Section 2.3(a) and Section 2.3(b) have been satisfied;
(iii) a certificate from the Secretary satisfy at or comparable official of Company, dated as of the Closing Date, attesting to the resolutions of such entity authorizing the execution, delivery and performance of the Transaction Agreements to be executed, performed and delivered by Company, and to the incumbency of the Person(s) executing any Transaction Agreement on behalf of such entity;
(iv) copies of the Organizational Documents of Company, each as in effect on the Closing Date and certified by the appropriate Governmental Authority or, with respect to any Organizational Documents that are not publicly filed, the Secretary or comparable official of Company;
(v) a certificate of valid existence as to Company from the Secretary of State (or its equivalent) in its jurisdiction of organization and each state where Company is qualified to do business as a foreign entity, in each case dated not earlier than the fifth Business Day prior to the Closing;
(vi3) evidence reasonably satisfactory to Buyer and its counsel that all mortgages, security interests, collateral assignments and other Liens (other than Permitted Liens) each Notice or filing listed on any of the assets of Company have Schedule 4.4 has been released, discharged and terminated in fullduly given or made, and the relevant assets each Consent or other assigned collateral have Permit listed on Schedule 4.4 has been returned to the relevant partyobtained and is in full force;
(vii4) as requested by XxxxxBuyer is satisfied, written resignationsin its sole discretion, effective as of the Effective Time, by all Persons who are directors or officers of Company;
(viii) a counterpart of the Escrow Agreement, duly executed by Company;
(ix) a counterpart of an employment agreement between Xxxxx and Shareholder, substantially in the form attached hereto as Exhibit C (the “Shareholder Employment Agreement”), duly executed by Shareholder;
(x) a counterpart of (i) a retention agreement between Company and each Key Employee, substantially in the form attached hereto as Exhibit D (collectively, the “Retention Agreements”), duly executed by each Key Employee, it being acknowledged that each Key Employee who executes a Retention Agreement shall be eligible Vendor listed on Schedule 8.1 intends to receive the bonus opposite his or her name continue to do business with Buyer on the schedule set forth on Exhibit E (the “Retention Bonus Schedule”) pursuant terms and conditions substantially similar to the terms and conditions of applicable to such Retention AgreementKey Vendor prior to the Effective Time;
(xi5) a signed Buyer is satisfied, in its sole discretion, with its review of the regulatory, environmental condition and executed Section 338 Election Form, under compliance history of the procedures described in Section 8.2(b), shall have been received and delivered to BuyerBusiness;
(xii6) duly completed and executed IRS Form W-9, Request for Taxpayer Identification Number and Certification, of Shareholder, or other certification of Shareholder reasonably acceptable to Buyer and otherwise meeting the applicable requirements of Treasury Regulation sections 1.1445-2(b)(2), in each case dated as of the Closing Date; and
(xiii) all other documents, certificates, agreements or instruments required to be delivered to Buyer at the Closing by any Selling Party pursuant to any other provision hereof, duly executed by the relevant Person(s).
(d) Since since the date of this Agreement, there shall not have occurred been no material adverse change in any Material Adverse Effectof the Company’s assets, nor shall any event have occurred thatfinancial condition, individually operations or in the aggregate, with or without the lapse of time, would reasonably be expected to result in a Material Adverse Effectoperating results;
(e7) No Proceeding shall since the date of this Agreement, no Suit has been initiated or Threatened that challenges or seeks damages or other relief in connection with the Transaction or that could have been commenced and be pending against any party to this Agreement which seeks to prevent the Closing. No Order shall have been issued by any Governmental Authorityeffect of preventing, and be in effectdelaying, which restrains making illegal or prohibits any transaction contemplated hereby;
(f) All approvals, consents and waivers that are listed on Schedule 2.3(f) shall have been received and delivered to Buyer, and shall remain in full force and effectotherwise interfering with the Transaction; and
(g) The closing of 8) the transactions contemplated by that certain Real Estate Purchase and Sale Agreement, dated October 3, 2022, by and between Related Party Landlord and Buyer (or its designee) (the “REPSA”), including the sale of the real estate and improvements located at 0000 Xxxxx Xxxxxx Xxxx, Spokane, Washington (collectively, the “Spokane Real Property”), Company shall have been consummated, it being the intent cash or cash equivalents as a component of the parties hereto for such transactions Final Closing Date Working Capital of not less than $500,000.
(b) Buyer may waive any condition specified in this Section 8.1 by a written waiver delivered to occur concurrently with the transactions contemplated by this AgreementSeller at any time prior to or at Closing.
Appears in 1 contract
Buyer Closing Conditions. The (a) Buyer’s obligation of Buyer to acquire purchase the Shares at and to close the Closing Transaction is subject to the satisfaction of each of the following conditions, unless explicitly waived by Xxxxx in writingconditions (the “Buyer Closing Conditions”) at or prior to Closing:
(a1) The Sellers’ representations and warranties of Shareholder contained in Article 4, as qualified or limited by any exceptions in this Agreement shall have been or the Schedules to this Agreement, or as may be subsequently amended are true and correct in all material respects on the Closing Date as if made at and as of the date hereof and shall be true and correct in all material respects as of the Closing, except Closing (i) those other than representations and warranties that address matters only as of a particular date need only be certain date, which were true and correct as of such that date, and (ii) in each case for any representations or warranties that are qualified by “materiality” or “Material Adverse Effect” or any similar qualifier, which representations and warranties shall have been and be true and correct in all respects);
(b2) The Selling Parties shall Sellers have duly performed executed and delivered all of the documents and instruments that they are required to execute and deliver or enter into prior to or at Closing, and have performed, complied with or satisfied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by the Selling Parties prior to or on the Closing Date;
(c) The Selling Parties shall have delivered or caused to be delivered to Buyer:
(i) original certificates evidencing all of the Shares duly endorsed for transfer other obligations, agreements and conditions under this Agreement that they are required to perform, comply with or accompanied by notarized powers, with all transfer stamps attached, if required, each duly executed by Shareholder, and such other instruments as may be requested by Buyer to vest full legal and beneficial ownership of the Shares in Buyer, free and clear of any Liens;
(ii) a certificate dated as of the Closing Date and signed by a duly authorized officer of Company, that each of the conditions set forth in Section 2.3(a) and Section 2.3(b) have been satisfied;
(iii) a certificate from the Secretary satisfy at or comparable official of Company, dated as of the Closing Date, attesting to the resolutions of such entity authorizing the execution, delivery and performance of the Transaction Agreements to be executed, performed and delivered by Company, and to the incumbency of the Person(s) executing any Transaction Agreement on behalf of such entity;
(iv) copies of the Organizational Documents of Company, each as in effect on the Closing Date and certified by the appropriate Governmental Authority or, with respect to any Organizational Documents that are not publicly filed, the Secretary or comparable official of Company;
(v) a certificate of valid existence as to Company from the Secretary of State (or its equivalent) in its jurisdiction of organization and each state where Company is qualified to do business as a foreign entity, in each case dated not earlier than the fifth Business Day prior to the Closing;
(vi3) evidence reasonably satisfactory to Buyer and its counsel that all mortgages, security interests, collateral assignments and other Liens (other than Permitted Liens) Each Notice or filing listed on any of the assets of Company have Schedule 4.4 has been released, discharged and terminated in fullduly given or made, and the relevant assets each Consent or other assigned collateral have Permit listed on Schedule 4.4 has been returned to the relevant partyobtained and is in full force;
(vii4) as requested by XxxxxBuyer is satisfied, written resignationsin its sole discretion, effective as of the Effective Time, by all Persons who are directors or officers of Company;
(viii) a counterpart of the Escrow Agreement, duly executed by Company;
(ix) a counterpart of an employment agreement between Xxxxx and Shareholder, substantially in the form attached hereto as Exhibit C (the “Shareholder Employment Agreement”), duly executed by Shareholder;
(x) a counterpart of (i) a retention agreement between Company and each Key Employee, substantially in the form attached hereto as Exhibit D (collectively, the “Retention Agreements”), duly executed by each Key Employee, it being acknowledged that each Key Employee who executes a Retention Agreement shall be eligible Customer and Key Vendor intends to receive the bonus opposite his or her name continue to do business with Buyer on the schedule set forth on Exhibit E (the “Retention Bonus Schedule”) pursuant terms and conditions substantially similar to the terms and conditions applicable to such Key Customer and Key Vendor prior to the Effective Time; however, Buyer’s exercise of such Retention Agreementthis Buyer Closing Condition shall not be based on the exceptions disclosed in Schedule 4.12;
(xi5) a signed Buyer is satisfied, in its sole discretion, with its review of the regulatory, environmental condition and executed Section 338 Election Form, under compliance history of the procedures described in Section 8.2(b), shall have been received and delivered to BuyerCompany;
(xii6) duly completed and executed IRS Form W-9, Request for Taxpayer Identification Number and Certification, of Shareholder, or other certification of Shareholder reasonably acceptable to Buyer and otherwise meeting the applicable requirements of Treasury Regulation sections 1.1445-2(b)(2), in each case dated as of the Closing Date; and
(xiii) all other documents, certificates, agreements or instruments required to be delivered to Buyer at the Closing by any Selling Party pursuant to any other provision hereof, duly executed by the relevant Person(s).
(d) Since since the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event have occurred that, individually or in the aggregate, with or without the lapse of time, would reasonably be expected to result in a Material Adverse Effect;
(e) No Proceeding shall have been commenced and be pending against no material adverse change in any party to this Agreement which seeks to prevent of the Closing. No Order shall have been issued by any Governmental AuthorityCompany’s assets, and be in effectfinancial condition, which restrains operations or prohibits any transaction contemplated hereby;
(f) All approvals, consents and waivers that are listed on Schedule 2.3(f) shall have been received and delivered to Buyer, and shall remain in full force and effectoperating results; and
(g7) The closing since the date of the transactions contemplated by that certain Real Estate Purchase and Sale this Agreement, dated October 3, 2022, by and between Related Party Landlord and Buyer (no Suit has been initiated or its designee) (the “REPSA”), including the sale of the real estate and improvements located at 0000 Xxxxx Xxxxxx Xxxx, Spokane, Washington (collectively, the “Spokane Real Property”), shall have been consummated, it being the intent of the parties hereto for such transactions to occur concurrently Threatened that challenges or seeks damages or other relief in connection with the transactions contemplated Transaction or that could have the effect of preventing, delaying, making illegal or otherwise interfering with the Transaction.
(b) Buyer may waive any condition specified in this Section 8.1 by this Agreementa written waiver delivered to Sellers at any time prior to or at Closing.
Appears in 1 contract
Buyer Closing Conditions. The (a) Buyer’s obligation of Buyer to acquire purchase the Shares at and to close the Closing Transaction is subject to the satisfaction of each of the following conditions, unless explicitly waived by Xxxxx in writingconditions (the “Buyer Closing Conditions”) at or prior to Closing:
(a1) The Sellers’ representations and warranties of Shareholder contained in this Agreement shall have been Article 4, as qualified or limited by any exceptions in the Schedules to Article 4, are true and correct in all material respects on the Closing Date as if made at and as of the date hereof and shall be true and correct in all material respects as of the Closing, except Closing (i) those other than representations and warranties that address matters only as of a particular date need only be certain date, which were true and correct as of such that date, and (ii) in each case for any representations or warranties that are qualified by “materiality” or “Material Adverse Effect” or any similar qualifier, which representations and warranties shall have been and be true and correct in all respects);
(b2) The Selling Parties shall Sellers have duly performed executed and delivered all of the documents and instruments that they are required to execute and deliver or enter into prior to or at Closing, and have performed, complied with or satisfied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by the Selling Parties prior to or on the Closing Date;
(c) The Selling Parties shall have delivered or caused to be delivered to Buyer:
(i) original certificates evidencing all of the Shares duly endorsed for transfer other obligations, agreements and conditions under this Agreement that they are required to perform, comply with or accompanied by notarized powers, with all transfer stamps attached, if required, each duly executed by Shareholder, and such other instruments as may be requested by Buyer to vest full legal and beneficial ownership of the Shares in Buyer, free and clear of any Liens;
(ii) a certificate dated as of the Closing Date and signed by a duly authorized officer of Company, that each of the conditions set forth in Section 2.3(a) and Section 2.3(b) have been satisfied;
(iii) a certificate from the Secretary satisfy at or comparable official of Company, dated as of the Closing Date, attesting to the resolutions of such entity authorizing the execution, delivery and performance of the Transaction Agreements to be executed, performed and delivered by Company, and to the incumbency of the Person(s) executing any Transaction Agreement on behalf of such entity;
(iv) copies of the Organizational Documents of Company, each as in effect on the Closing Date and certified by the appropriate Governmental Authority or, with respect to any Organizational Documents that are not publicly filed, the Secretary or comparable official of Company;
(v) a certificate of valid existence as to Company from the Secretary of State (or its equivalent) in its jurisdiction of organization and each state where Company is qualified to do business as a foreign entity, in each case dated not earlier than the fifth Business Day prior to the Closing;
(vi3) evidence reasonably satisfactory to Buyer and its counsel that all mortgages, security interests, collateral assignments and other Liens (other than Permitted Liens) each Notice or filing listed on any of the assets of Company have Schedule 4.4 has been released, discharged and terminated in fullduly given or made, and the relevant assets each Consent or other assigned collateral have Permit listed on Schedule 4.4 has been returned to the relevant partyobtained and is in full force;
(vii4) as requested by XxxxxBuyer is satisfied, written resignationsin its sole discretion, effective as of the Effective Time, by all Persons who are directors or officers of Company;
(viii) a counterpart of the Escrow Agreement, duly executed by Company;
(ix) a counterpart of an employment agreement between Xxxxx and Shareholder, substantially in the form attached hereto as Exhibit C (the “Shareholder Employment Agreement”), duly executed by Shareholder;
(x) a counterpart of (i) a retention agreement between Company and each Key Employee, substantially in the form attached hereto as Exhibit D (collectively, the “Retention Agreements”), duly executed by each Key Employee, it being acknowledged that each Key Employee who executes a Retention Agreement shall be eligible Customer and Key Vendor intends to receive the bonus opposite his or her name continue to do business with Buyer on the schedule set forth on Exhibit E (the “Retention Bonus Schedule”) pursuant terms and conditions substantially similar to the terms and conditions of applicable to such Retention AgreementKey Customer and Key Vendor prior to the Effective Time, except for any lost discounts, revenue, sales, or preferred terms with Key Customers or Key Vendors related to the Company’s former participation in the Premium Recycled Parts association;
(xi5) a signed Buyer is satisfied, in its sole discretion, with its review of the regulatory, environmental condition and executed Section 338 Election Form, under compliance history of the procedures described in Section 8.2(b), shall have been received and delivered to BuyerBusiness;
(xii6) duly completed and executed IRS Form W-9, Request for Taxpayer Identification Number and Certification, of Shareholder, or other certification of Shareholder reasonably acceptable to Buyer and otherwise meeting the applicable requirements of Treasury Regulation sections 1.1445-2(b)(2), in each case dated as of the Closing Date; and
(xiii) all other documents, certificates, agreements or instruments required to be delivered to Buyer at the Closing by any Selling Party pursuant to any other provision hereof, duly executed by the relevant Person(s).
(d) Since since the date of this Agreement, there shall not have occurred been no material adverse change in any Material Adverse Effectof the Company’s assets, nor shall any event have occurred thatfinancial condition, individually operations or in the aggregate, with or without the lapse of time, would reasonably be expected to result in a Material Adverse Effectoperating results;
(e7) No Proceeding shall since the date of this Agreement, no Suit has been initiated or Threatened that challenges or seeks damages or other relief in connection with the Transaction or that could have been commenced and be pending against any party to this Agreement which seeks to prevent the Closing. No Order shall have been issued by any Governmental Authorityeffect of preventing, and be in effectdelaying, which restrains making illegal or prohibits any transaction contemplated hereby;
(f) All approvals, consents and waivers that are listed on Schedule 2.3(f) shall have been received and delivered to Buyer, and shall remain in full force and effectotherwise interfering with the Transaction; and
(g) The closing of 8) the transactions contemplated by that certain Real Estate Purchase and Sale Agreement, dated October 3, 2022, by and between Related Party Landlord and Buyer (or its designee) (the “REPSA”), including the sale of the real estate and improvements located at 0000 Xxxxx Xxxxxx Xxxx, Spokane, Washington (collectively, the “Spokane Real Property”), Company shall have been consummated, it being the intent cash or cash equivalents as a component of the parties hereto for such transactions Final Closing Date Working Capital of not less than $350,000.
(b) Buyer may waive any condition specified in this Section 8.1 by a written waiver delivered to occur concurrently with the transactions contemplated by this AgreementSellers at any time prior to or at Closing.
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